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

By July 18, 2022September 12th, 2022No Comments

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.

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