Court Confirms In-House Privilege "More Difficult" to Analyze

If you read this blog you know I think the world of Todd Presnell's blog "Presnell on Privileges." If you are an in-house lawyer and not reading this blog, you are doing yourself a great disservice. In a recent post, Todd discusses a Federal District Court case in Louisiana and a judge's written opinion setting out a cogent analysis of when the attorney-client privilege applies to in-house counsel and when it does not. To read the blog post, click here. From the post:

"More Difficult

Dow Chemical challenged the privileged nature of several emails involving Texas Brine’s in-house lawyers, and the court recognized the difficulty in assessing in-house lawyers’ privilege assertions. The court found it “more difficult” to define the privilege’s scope because in-house counsel “serve multiple roles,” including non-legal ones, and have an “increased level of participation in the day-to-day operations of the corporation.”

The opinion goes on to set out several examples of when the privilege does or does not apply in the in-house context. For example, just copying a lawyer on an email does not make that email a privileged communication. It's a short opinion and you can read it here. As an in-house lawyer, one of your most important jobs is to do everything you can to preserve the attorney-client privilege. This means you and your team need to understand how it works and you need to train the business on how it works as well. If either side fails to get it right, it can be devastating and backfire on you like the Coyote and a box of ACME products. See also my legal blog "Ten Things You Need to Know as In-House Counsel" and my posts on the attorney-client privilege and on legal department priorities for 2017 (including preserving the privilege).