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Attorney-Client Privilege for In-House Counsel

By Jason A. Copling

The purpose of the attorney-client privilege, as stated by the Supreme Court in Upjohn Co. v. United States, 449 U.S. 383 (1981), is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” That concept seems pretty straightforward in, for example, a criminal case. However, as any in-house attorney knows, this concept becomes pretty murky when applied to attorneys working inside entities: Who is the client? Which attorneys are covered? Are those attorneys always covered? Which communications? With whom? On what subjects? The questions are endless and the situations are complex.

The following is a roadmap for common issues relating to the attorney-client privilege. While we don't have a black letter law answer to every strange fact pattern that may arise, there are some guidelines for keeping your communications privileged and your memos and e-mails out of opposing counsel's hands.

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