Black Box Tips: Retaining Privilege Over Legal Advice Within an Organization | The tone

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This week, Lisa McCreath takes a look at maintaining legal privilege within an organization

Life’s greatest learning opportunities often come from things that go wrong. Only companies that are designed to learn from mistakes are truly able to maximize their potential.

The aviation industry has made this a fine art. If something goes wrong, the black box flight recorder ensures that their errors are “data rich”. This industry’s ability to learn from its mistakes has transformed it from one of the most dangerous modes of transportation to one of the safest.

The law is no different. As part of the world’s largest law firm, our dispute resolution team is also “data rich”: So here we use our knowledge of why things go wrong to help you either avoid disputes in the first place or identify opportunities to fight your client’s corner.

Maintaining the privilege of legal advice within an organization

Maintaining the privilege of providing legal advice within an organization is a challenge, particularly when electronic forms of communication allow information to be disseminated easily and quickly.

The following practical steps must be considered.

  1. Is communication privileged? The overarching principle is that confidential communication between client and attorney for the purpose of obtaining legal advice is privileged. Being clear which documents/communications are privileged is the starting point. In summary:
    • Legal Privilege protects communication between lawyers and their clients seeking and providing legal advice (in contentious and non-contentious matters). The client is generally the person or core team within the company who is responsible for giving direction and has authority (either express or implied) to seek legal advice on a particular subject.
    • procedural law protects confidential communications between attorneys, clients and third parties created for the primary purpose of existing or reasonably contemplated litigation.
  2. Mark all privileged communications as “legally privileged and confidential”.. While it is not conclusive as to whether a given communication is privileged, implementing a labeling convention helps identify privileged content and alerts recipients to the sensitive nature of the communication.
  3. Store privileged material separately from non-privileged material. Consider whether it would not be better to create two documents/communication channels, one of which is clearly privileged and the other for purely commercial/administrative matters. These communications should be stored separately or encrypted to protect them from being forwarded.
  4. Avoid unnecessary/accidental dissemination of privileged information. Legal advice should only be passed on on a need-to-know basis (both internally and externally). In the event that advice needs to be shared outside of the client team (e.g. to a parent company, insurer or accountant), specific advice should be given to maintain confidentiality.
  5. Stay in control of information gathering and document creation. In particular, employees who are not part of the customer team should not create any reports or documents relevant to advice, but can provide factual material to the customer team.
  6. Finally, choose your language very carefully when in doubt about the prevailing purpose of a communication. Unless you are certain that these privileges apply to the communication or document being prepared, avoid expressing opinions about the client’s position and keep written communications as factual as possible.

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