Subsidiaries, Affiliates And Privilege Protection

When the in-house lawyer communicates with someone from an “affiliated entity,” it complicates the question of attorney-client privilege – or does it? In some ways the process of making the determination is identical, says Todd Presnell in this Today General Counsel Column: The judge will decide and the legal hurdle is unchanged. The essence of that hurdle is to prove that there was confidential communication between employee and the lawyer for the primary purpose of assisting the lawyer in providing legal advice. When the time comes for the judge to make the determination, he says, make sure you have the evidence ready to produce.