Consider Attorney-Client Privilege Before It Becomes a Litigation Issue

It’s important to keep the attorney-client privilege in mind routinely, not just when litigation arises. By then, if mistakes have been made it’s probably too late to rectify them. In a Today’s General Counsel column, Jeffery M. Cross considers the privilege, its origin, how it’s been interpreted, and most important, what companies can do to maximize the chance a communication will actually be privileged. Number one consideration is that merely copying an attorney on a document that is going to a number of recipients does not invoke privilege. In fact, he writes, “inclusion on such a ‘carbon copy’ list is a sign that the communication is probably not being sent to the attorney for the purpose of obtaining legal advice.” Nor, he adds, does using such headings as “Privileged & Confidential/Attorney-Client Communication” make it so. Far more important, he explains, is the language in the communication itself.