The Importance of Protecting the Attorney-Client Privilege in Corporate Communications

In today's legal landscape, the attorney-client privilege plays a crucial role in protecting the confidentiality of communications between corporations and their legal counsel. However, recent litigation has raised questions about the implications of consulting with in-house counsel and circulating their advice.

The Federal Trade Commission (FTC) has taken an aggressive stance, suggesting that corporate employees seeking legal advice may indicate a knowing and deliberate violation of the law. This perspective is concerning, as it disregards the fundamental purpose of working with in-house counsel – to ensure compliance with the law.

In reality, seeking legal guidance from in-house counsel demonstrates a company's commitment to operating within the bounds of the law. It is an important step towards maintaining a culture of compliance and mitigating potential risks.

However, it is crucial to be mindful of how counsel's written advice is circulated within the organization. Sharing such advice without proper safeguards may result in a waiver of the attorney-client privilege. Therefore, it is advisable to ask in-house counsel to forward the advice to those who need to know. Dropping counsel from the chain of emails risks an inadvertent waiver of the privilege.

Furthermore, operating outside of the United States requires additional caution. It is important to note that attorney-client privilege for in-house counsel is not universally recognized in all jurisdictions. This means that communications with in-house counsel may not be protected in certain countries. Therefore, it is important to seek local legal advice and establish effective communication protocols when dealing with international operations.

Remember, consulting with legal counsel is an essential part of corporate governance, and the attorney-client privilege is there to protect and facilitate this important relationship.