Are In-House Counsel Communications Covered by the Attorney-Client Privilege?

The Attorney-Client privilege is the name given to an old doctrine in the US legal system—which has counterparts world wide—in which communications between attorneys and clients in the context of providing legal representation are confidential and protected from disclosure.

What happens though, when the attorney is also an employee of the corporation; what’s usually named as “in-house counsel.” Are communications between employees of the corporation and another employee (the in-house lawyer) of the corporation protected from disclosure under the Attorney-Client privilege doctrine?

The Florida Fourth District Courts of Appeals addressed this issue head on in?Herrera v. Jarden Corp. In that case the Fourth District held that “The attorney-client?privilege?‘protects confidential communications between a lawyer and?client, as well as third persons to whom disclosure is in furtherance of the rendition of legal services and those reasonably necessary for the transmission of the?communication.”?Herrera v. Jarden Corp., 334 So. 3d 637, 644 (Fla. 4th DCA 2022) (citing Ford Motor Co. v. Hall-Edwards, 997 So. 2d 1148, 1153 (Fla. 3d DCA 2008)).

This?privilege, the court continued, “extends to communications between employees and in-house?general counsel, whether oral, contained in documents or contained in a database.”?Id.; see also?Fla. Marlins Baseball Club, LLC v. Certain Underwriters at Lloyd’s London Subscribing to Policy No. 893/HC/97/9096, 900 So. 2d 720, 721 (Fla. 3d DCA 2005) (“[T]he attorney-client?privilege?protects communications on legal matters between corporate in-house?counsel?and corporate employees.”).?Herrera v. Jarden Corp., 334 So. 3d 637, 644 (Fla. 4th DCA 2022).

To determine “whether a?corporation’s?internal communications are protected by the attorney-client?privilege, [the court] consider[ed] the following criteria:

(1) the?communication?would not have been made but for the contemplation of legal services;

(2) the employee making the?communication?did so at the direction of his or her corporate superior;

(3) the superior made the request of the employee as part of the?corporation’s?effort to secure legal?advice?or services;

(4) the content of the?communication?relates to the legal services being rendered, and the subject matter of the?communication?is within the scope of the employee’s duties;

(5) the?communication?is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.”

Herrera?334 So. 3d at 644-45.

As seen, as long as the communications are in the context of corporate activities, and related to legal issues, communications between an in-house attorney and a corporate employee will be protected by the attorney-client privilege doctrine.

For more information about legal matters related to confidential communications, contact an experienced litigation attorney at Ayala at 305-570-2208.

Visit also our practice areas sections to see how we can be of any help:?https://www.lawayala.com/practice-areas/

You can schedule a case evaluation online at?https://www.lawayala.com/consultation/.