Attorney-client privilege in commercial real estate litigation or any legal context protects confidential communications between a client and their attorney. This is critical for protecting legal strategies, but how easily can attorney‑client privilege be compromised inside an organization?
In this video, partner Jeff Brown shares practical tips for in-house counsel for preserving confidentiality, from avoiding email autofill mistakes to being thoughtful about who is included in privileged communications and clearly separating legal advice from routine business discussions.
Video Transcript
Hi, I’m Jeff Brown and I’m a business litigation partner in Thompson Coburn’s Los Angeles office. Today I want to discuss with you very brief helpful hints with regard to keeping the attorney-client privilege confidential within your organization.
One, make constant reminders to your business people to be careful where they send emails, who they have on the phone, and where they send text messages.
Two, as a corollary, be careful of autofill. It’s very easy to accidentally add somebody’s name into the address line and find out that your privileged communication has been sent to the opposing counsel or some third party.
Three, be aware of your state’s law on privilege. In California, for example, almost anybody who is an employee of your company can be considered part of the privileged communication, but other places within the country have the control group analysis, and that limits who can become part of that privileged communication without a waiver.
Next, be careful as to what hat you’re wearing. You’re in-house counsel, so a lot of times what you’re doing is business negotiations and conversations involving business matters. Those are not privileged. If you’re going to have a confidential communication with respect to advice that you’re providing, that must be considered privileged, and you should be careful to designate it as such.
And last, don’t invite somebody into the conversation or into the communication who is a third party unless you have confidence that bringing that person in, such as a consultant, an environmental consultant, an accountant, or someone like that, is actually needed by the in-house counsel or outside counsel to help provide that advice.
