It's simple—the attorney-client privilege protects from discovery communications between a client and his or her lawyer. It's challenging—the privilege applies to communications between (some) corporate representatives and outside counsel, depending whether federal or state privilege law applies; and if state law, which state. It's convoluted—the privilege protects communications between (some) corporate representatives and in-house counsel, but only if U.S. law applies, the issue arises in an advantageous jurisdiction, and in-house counsel satisfy a heightened burden, prove the communication arose in a legal (rather than business) capacity, and the company employee did not waive the privilege by inappropriately disseminating the communication.
Republished with permission. This article first appeared in In-House Defense Quarterly, Winter 2014 Issue.
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