In-house attorneys are wielding increasing and enormous power in the running of corporate America. Attorneys these days play leading, not just supporting, roles, getting involved in virtually every kind of business decision. Theirs are the minds that chief executives increasingly turn to for advice. - Forbes, November 6, 1995
This observation from the cover story of Forbes magazine in 1995 is followed by an impressive list of in-house corporate attorneys whose annual salaries exceed $2 million. In short, as the magazine's cover puts it, "Once underlings, in-house lawyers are rising in power and pay."
This is sure to be good news for in-house counsel, but what effect does this have on the attorney-client privilege? When an attorney changes "hats" from lawyer to business adviser, for example, does the privilege cease to attach? What about protection for communications that provide a combination of legal and business advice? And even when the lawyer is wearing the lawyer's hat, to whom within the corporation does the privilege attach? Does this apply only to top management, or to rank-and-file employees as well? This article will seek answers to these questions in an effort to provide in-house corporate counsel with some guidance for protecting their corporate clients' interests while effectively fulfilling their dual roles.
In-House Counsel Ranks Are Growing
Based on their particular blend of skills and experience, attorneys employed in-house by corporations – both for-profit entities as well as trade and professional associations – are often asked by their employers to perform business functions in addition to their corporate legal duties. This is not an isolated phenomenon, but rather the mainstream for today's in-house practitioner. According to a 1992 survey, 52 percent of in-house general counsel have non-legal executive duties (up from 47 percent in 1982). This percentage is independent of the 53 percent of respondents who hold the well-accepted, dual general counsel/corporate secretary position (up from 47 percent in 1982). These figures continue to grow at a rapid pace.
Corporate counsel serving in dual legal and business roles bring enhanced value to their clients. The major advantage to corporations of employed (rather than retained) counsel is the regular benefit of legal counsel and representation by lawyers who are extremely knowledgeable about the client and its business operations, its history and goals.
Corporate counsel who perform dual roles represent a natural and valuable extension of the essential nature of in-house practice, and provide what no single-role attorney can virtually ever provide – bring legal judgment to bear on the myriad daily decisions and actions being taken by corporate managers.
Also, many in-house attorneys find their jobs rewarding because of the legal and business roles they serve. In fact, this unique blend of business and legal functions attracts corporate counsel to join the ranks of those "inside." As Viacom Inc.'s former in-house counsel Philippe Dauman said once, "I cannot think of a better job in the world than the one I have now." According to the late former Viacom Chairman Sumner Redstone, "Dauman is not just the general counsel; he is key in determining the vision, strategy and operation of Viacom."
However, it is a mistake for attorneys to undertake business functions on behalf of a client without a sufficient understanding of the legal effect such actions may have. Having multipurpose responsibilities often cause the already fine line between "legal" and "business" communications to become even more blurred – a line that is crucial to the application of the attorney-client privilege.
The Attorney-Client Privilege: Background
Generally, communications between attorneys and their clients are privileged. There are, however, many universally recognized exceptions to this rule. The issues surrounding communications between corporate counsel and their clients are especially complex. Corporate counsel, in-house and outside alike, provide clients with more than just legal advice. In today's legal environment, corporate counsel serve as business advisors and strategists as well as legal counselors. Therein lies the major stumbling block to asserting the attorney-client privilege in this context, because one of the requirements for the privilege to apply is that the client or would-be client must have sought legal advice, opinion, service, or assistance, as opposed to merely business advice.
It is now well-established that a corporation may assert the attorney-client privilege to protect its communications with counsel. However, if a communication sought to be protected by the privilege contains both legal and business advice, the privilege only applies to the legal opinions or advice.
For both corporations and individuals, the attorney-client privilege serves to promote full, frank communication between attorneys and their clients. This encourages observance of the law and aids in the administration of justice. Moreover, the privilege "rests on the need for advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out."
However, a corporation may not merely pass materials through corporate counsel's hands in order to invoke the privilege and thereby insulate itself from disclosure of facts or documents. As one court noted, the "in-house counsel's law degree and office are not to be used to create a 'privileged sanctuary for corporate records.'"
The requirements necessary to assert the attorney-client privilege were enunciated in United States v. United Shoe Machinery Corp., an oft-cited 1950 case in which the court stated:
The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate, and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client, (b) without the presence of strangers, (c) for the purpose of securing primarily either (i) an opinion of law, (ii) legal services, or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed, and (b) not waived by the client.
The party that asserts the privilege will bear the burden of proving each element necessary to invoke it. Furthermore, that party must take appropriate steps to preserve the confidential nature of the materials sought to be protected, because "[subsequent] disclosure [to a third party] is viewed [either] as an indication that confidentiality is no longer intended or as a waiver of the privilege."
Generally, any disclosure waives the attorney-client privilege, although there is some disagreement about whether involuntary disclosure of information waives the privilege. It has also been held that the attorney-client privilege "only protects disclosures of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorneys."
Applying the Privilege to Corporations
To date, courts have grappled with the extension of the privilege to corporate entities. A corporation is an inanimate and artificial entity created and governed by state law. A corporation requests legal advice and makes decisions based on such advice only through its employees and agents. Since a corporation is purely a legal entity and has no true operational existence, courts have found it difficult to ascertain who exactly is protected by the privilege.
Although corporate counsel represents the corporation and not the directors, management or individual shareholders, an attorney must converse with all of these people in order to fulfill his or her duties to the corporation. Further, large corporations consult attorneys on a continuous basis and make decisions that seemingly create a complete insulation of all discovery, or a "zone of silence." Lastly, whenever corporations are involved, there are numerous agents, masses of documents, and frequent discussions with attorneys in order to understand the complex laws and regulations with which these legal entities are expected to comply. Courts have a difficult time defining the privilege in these communications.
Consistently applying the privilege to corporate clients is a fairly recent development in the law. The United States Supreme Court did not explicitly recognize the applicability of the attorney-client privilege in the corporate context until 1981 in Upjohn Co. v. United States. Since Upjohn, the courts have failed to enunciate a "bright line" standard for practitioners who serve dual business and legal roles when attempting to invoke the attorney-client privilege. Nonetheless, some jurisdictions confronted with this common situation have offered some helpful, though inconclusive, guidance.
Upjohn Co. v. United States
In an attempt to clear the confusion that had evolved in the federal courts with regard to the scope and applicability of the attorney-client privilege, the Supreme Court granted certiorari to Upjohn in 1981. In this case, the Supreme Court for the first time endorsed the application of the attorney-client privilege to corporations. Specifically, the Court overruled the previous and narrow "control group" test, thereby broadening the scope of the privilege. The Court also stated that an attorney needs to gather all available information in order to render sound legal advice. The limited control group test would protect only those communications to and from senior corporate executives. This in turn would frustrate counsel's effort to acquire the requisite information and would limit counsel's ability to ensure the client's compliance with the law.
Despite the Court's concern with the past uncertainty in this area of the law, it declined to adopt a "bright line" standard to determine when the privilege will be applicable to attorney-corporate client communication. Rather, the Court stated that the law of privilege should evolve on a case-by-case basis. (It should be noted that because Upjohn concerned only an interpretation of the Federal Rules of Evidence, it is not binding on state rules.) While refusing to adopt a set standard, the Court attempted to avoid the ad hoc decisions of past by specifying several relevant factors.
After Upjohn, it is now clear – at least in the federal courts – that the privilege extends to all communications with counsel by corporate employees made under a superior's orders and for known corporate purpose of obtaining legal advice. To be protected, however, information must be related to matters within the scope of the employee's corporate duties.
In contrast, communications that pertain to business matters generally do not enjoy protection from the attorney-client privilege. A fundamental element of the privilege is that the attorney be in the appropriate role as an attorney during the communication with the client. Specifically, an attorney must be privy to confidential communications made for the purpose of securing legal advice from counsel. More specifically, the attorney-client privilege only protects confidential communications made to an attorney for the purpose of securing legal advice or assistance. It does not protect business advice.
To assert the privilege, corporations must clearly demonstrate the communications to be protected were given in a professional legal capacity and that they concern legal rather than business matters. However, corporate dealings are not made confidential merely by funneling them routinely through an attorney.
The Dual Roles of In-House Counsel
Determining whether communications are protected by the attorney-client privilege can be extremely difficult for both corporations and their attorneys. As noted above, the privilege only protects "confidential" communications for the purpose of obtaining legal advice. This critical distinction creates special concerns for corporate attorneys who perform business functions for their employers.
Frequently, a corporate attorney's communications to his or her client are inextricably intertwined with facts, legal issues and other business matters. Consequently, such advice and communications are generally contained in documents, letters and memoranda that contain business as well as legal considerations.
Courts have strived to formulate workable standards for determining when an attorney-business person renders advice as an attorney or as a business person. While, in the past, numerous courts have applied an "all or nothing approach," based on the relative time devoted to legal and nonlegal activities, the preferred rule today is a case-by-case analysis, where courts evaluate the protection of each communication according to the nature of the advice sought by the client.
Specifically, only legal advice is protected, while business or technical advice is not. A request for legal advice that is merely incidental to a request for business advice is not protected. If, however, on balance, the legal advice was somewhat greater than the nonlegal advice, even if the nonlegal aspects were substantial, the standard would be met. In other words, for the privilege to apply, the legal aspects of the individual communication must be dominant over nonlegal purposes.
Notwithstanding this view, courts and legal scholars have differed greatly in their focus and analysis when determining the applicability of the privilege. Some courts focus on the behavior of the attorney irrespective of the actual advice or communication provided to the corporate client. Other jurisdictions examine the attorney's advice and its content to determine the applicability of the privilege. A substantial body of case law exists to guide (albeit not clearly) the dual-role in-house counsel in protecting the attorney-client privilege.
Minimizing Risk or Forfeiting the Privilege
The controlling feature for the attorney-client privilege is the capacity in which the lawyer is asked to give advice. All confidential communications made to a client by a lawyer are protected if that lawyer has acted in a legal rather than a business capacity.
Ideally, if the lawyer was consulted strictly to obtain legal advice and that is all that was rendered, it should not matter whether the counsel employed was in-house or outside. The court in United Shoe found no reason to distinguish between the two types of counsel to determine whether the privilege applied. Similarly, the Supreme Court in Upjohn sustained the privilege not only for outside counsel but also for documents that concerned a factual investigation conducted by in-house counsel. The courts in these (and other) cases were restrictive only when counsel's advice was given for business instead of (or in addition to) legal purposes.
It is possible for counsel to utilize the privilege to maximize the amount of sensitive information to be protected, with careful planning and documentation. Moreover, attorneys can avoid compelled disclosure of documents and information that were once erroneously believed to be privileged. Hence, counsel can avoid embarrassing or even incriminating communications from being disclosed to the court, opposing counsel, or even a jury.
Serving in the dual capacity of corporate attorney and business person requires in-house counsel to be cognizant and mature enough to identify potential problems, and to carefully separate business and legal activities, responsibilities and communications – a task easier said than done, but essential nonetheless.
For more information, contact the author at jtenenbaum@TenenbaumLegal.com.