Sunday, October 23, 2011

What I Have Learned: Attorney-Client Privileged and Confidential

Disclaimer: I am not a lawyer.

If you work in the technology sector in the States then at some point in your career you've probably received an email that started with the words in the title of this post.

Sometimes for effect the sender of the email may have bolded them:

Attorney-Client Privileged and Confidential

Others are known to go with a bold & italic strategy:

Attorney-Client Privileged and Confidential

And of course there is the ever-popular ALL-CAPS approach:


So what does this phrase mean? Is it really necessary? From what types of situation is it meant to protect you and your company? Here's what I've found out.

The last question is the easiest to answer. The law of civil procedure includes provisions for the process of "discovery" whereby each party involved in a civil action can request documents and other evidence, or can compel the production of evidence by using subpoenas or other means. Much of what goes into a company's day-to-day business is "subject to discovery", ie. may be required to be turned over to the legal counterparty (ie. the “other side”) in the suit. That includes product source code, documentation, reports, letters, faxes, files, and phone records.

Most crucially, though, for tech companies: all emails are by default subject to discovery.

This is where our famous phrase comes in: excluded from the discovery process are materials which fall under "attorney-client privilege". Attorney-client privilege is a legal structure which protects from discovery all communications where a client seeks or obtains legal advice from an attorney. Such "privileged" conversations are excluded from the discovery process and may be withheld from the opposing party.

Legally, one needs to consider a number of factors when looking at whether a particular email communication falls under attorney-client privilege; EITHER

  • the email is from a lawyer representing the company, and dispenses legal advice or opinion. Such communications are almost always privileged

or ALL OF THE FOLLOWING must apply:

  • the communication has to be with a lawyer who represents the company, since attorney-client privilege, as the name may suggest, only covers communication between a client (you) and an attorney (an edge case might be an email to someone with the explicit request asking for a lawyer to be added on the thread);
  • the communication must be clearly and directly asking for legal advice or guidance; and
  • the communication must not be broadly distributed (eg. if you email a smaller mailing list it is fine, but if you choose to cc a large group then the communication is likely no longer covered)

Note that "the communication includes a banner identifying the email as attorney-client privileged" is not one of the criteria! In fact the text "Attorney-client privileged" is itself not significant in any way, ie. the communication would be privileged—or not—with or without the banner. The only reasons to keep the text in place are

  • to make explicit, to teams performing legal discovery, that in the opinion of the sender this message is protected under attorney-client privilege; and
  • to remind recipients of the email that the material is sensitive and subject to privilege. Forwarding such an email usually removes it from the umbrella of privilege.

The final piece of legal advice is never to take legal advice from someone who's not a lawyer. The above is a guideline only; when in doubt, always consult an actual attorney.


UPDATE 12 July 2013 Interesting additional notes from an actual corporate attorney:

  1. Attorney-client privilege exists under both state and federal law in the United States. There are a few state-specific differences that can affect when/whether the privilege attaches to a communication.
  2. Attorney-client privilege works differently, if at all, outside the United States. For example: at a global company with employees in, say, the UK—when a UK-based employee seeks legal advice from US-based attorneys, attorney-client privilege does not exist for that communication in the UK.