What if you only had 1 hour to teach your employees about the important protections found in the attorney-client privilege (in the United States)?
I usually reserve at least 25% of the time for questions and conversation, so now you're down to 45 minutes.
As we've previously covered in the Ultimate Guide on Antitrust Training, the Ultimate Guide on FCPA Training and the Ultimate Guide on Advertising Law Training, corporate counsel need to start with the basics. What do employees need to know? And when do they just need to spot a red flag and report back to legal?
In those guides, we discussed that corporate counsel need to focus on teaching employees to (1) spot red flags and (2) respond appropriately in risky situations.
Unfortunately, privilege training is a bit more complex in that employees will "need to know" all its basic principles. Once an employee makes a damaging non-privileged communication, it's extremely difficult (nay impossible) to remedy.
Here's the breakdown of the critical concepts you'll cover during the 45 minute attorney-client privilege training:
- What is the attorney-client privilege? - 5 minutes, 1 slide
- Why does it matter? - 5 minutes, 1 slide
- What is protected? - 30 minutes, 7 slides
- Who owns the privilege? - 5 minutes, 1 slide
Of course, attorney-client privilege is a topic which in-house counsel need to study extensively - especially in-house counsel, as courts generally apply greater scrutiny to their communications.
Further, in-house counsel should be especially diligent when dealing with international employees or subsidiaries as the privilege may be different or not recognized in all countries.
However, for training purposes, you should only cover what your employees need to know. Avoid topics like classification of legal advice or business advice. This is something you need to know. Not your employees.
NOTE: There are a ton of best practices in-house counsel should be aware of to preserve privilege. Check out this post by Seyfarth Shaw for a good summary.
Which employees should get training on attorney-client privilege?
This is a difficult question to answer, and it may be different for each organization. Certainly company executives should get this type of training.
However, lower level employees can also create extremely damaging litigation exhibits if they're not careful. Accordingly, if you don't have time or resources to provide training to all employees, you may want to think about at least sending a memo to everyone summarizing the attorney-client privilege.
Here is an example memo from Practical Law.
Without further ado, here are the 4 concepts you should address in attorney-client privilege training:
1. What is the attorney-client privilege?
It's possible that some of your employees won't know the first thing about attorney-client privilege, so it's important to start with the basics.
Succinctly summarize the attorney-client privilege as follows:
The attorney-client privilege protects potentially damaging information from being disclosed to third parties during litigation.
In explaining the attorney-client privilege, in-house counsel should emphasize that the privilege (1) belongs to the company only (you'll address this later), and (2) is extremely delicate, depending almost entirely on the circumstances surrounding the creation of the communication and the way the information is treated after its creation.
Suggested time: 5 minutes - 1 slide
2. Why does the attorney-client privilege matter to employees?
Because of this, it's important for corporate counsel to tell employees why learning about the attorney-client privilege is extremely important to the company.
Without it, the company would not be able to prevent the disclosure of potentially damaging documents during litigation. Effectively, the company would lose the ability to obtain proper legal advice when it is considering it's next course of action.
Because the privilege depends on the nature of each and every communication, employees need to be alert and keep these principles in mind each time they communicate about potential legal matters.
Suggested time: 5 minutes - 1 slide
3. What is protected under the attorney-client privilege?
Training employees on which communications are privileged and which are not is the most difficult part of your presentation and perhaps the most critical to protecting the company.
By the end of the training session, employees must understand that the privilege applies only to:
- Confidential communications
- Between the company (client) and its attorney
- For the purpose of obtaining legal advice
Unfortunately, there are a lot of nuances to each of the elements, so it's best to use examples (protected v. non-protected) and a "do's/don't's" list to help your employees to remember before they write that damaging email.
That said, you should write a formal definition for each of these in the training handout.
NOTE: you may find it better to stick to the formal definitions for training your employees. It may be appropriate to take a more nuanced approach if you're confronting specific situations (like pending litigation), but this training is intended for a general training exercise - so we'll stick to informal presentations.
Protected v. Non-protected Communications
Start with some basic examples to illustrate the definition.
Again, it's important to be clear that the privilege applies to the company only. Employee communications not related to company affairs are most likely not protected.
- Requests for legal advice from in-house or outside counsel
- Disclosure of facts to in-house or outside counsel
- Requests by in-house or outside counsel to business people for information needed to give legal advice
- Legal advice provided by in-house or outside counsel
- Business communications
- Most non-lawyer created corporate documents
- Communications of non-confidential information
For each of these topics, be prepared to give plenty of hypotheticals and illustrations. While each of these guidelines seems simple, employees may have a different understanding of the definitions. E.g., "what is legal advice?", "what confidential information"?, etc.
It's also important employees understand that just because they send something to you or your outside counsel, it doesn't automatically become privileged. Additionally, employees need to be aware that the facts of the communication are never privileged, as it is only the communication itself that gets the privilege.
Now that your employees understand privileged and non-privileged information, we're on to best practices for protecting the privilege.
Dos & Don't's of Attorney-Client Privilege
I love presenting information in do/don't format as it allows employees to easily digest command-based best practices.
- Label privileged documents
- Indicate in writing that legal assistance is being sought
- Be aware of who is copied on emails
- Restrict emails only to necessary parties
- Discuss legal issues with third parties
- CC or BCC third parties on emails to or from your attorney
- Forward emails (or email chains) from or to your attorney
- Invite unnecessary employees to meetings with legal
- Assume all confidential information is privileged
- Assume all communications with lawyers are privileged
- Assume all meetings with lawyers are privileged
Again, you will want to have explanations, hypotheticals and illustrations ready to go for each of these best practices. Most are pretty straight forward, but employees may have questions such as defining "necessary" parties to an email containing legal advice.
Note: for more on who is "necessary", check out the job scope element of the UpJohn test.
Suggested time: 30 minutes - 7 slides
4. Who owns the the attorney-client privilege?
Finally, it's important employees understand that they don't own the attorney-client privilege. In the case of in-house counsel, the privilege is owned and used solely by the company.
Suggested time: 5 minutes - 1 slide
What do you think?
Are there other best practices or topics in-house counsel should address while providing legal training to employees on attorney-client privilege?
Let me know in the comments!