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Corporate counsels have plenty of things to worry about every day. One of the most basic but often troublesome areas is written business communications.

There’s plenty of litigation or a regulatory investigation that contains as a critical piece of evidence an incriminating email, text message, memo, or other communication. The toughest thing for employees to realize is that when they write something down, it’s likely to be discoverable in litigation.

And even when that message isn’t germane to the issue, it contains views, opinions, or worse, that create an image problem for the company or place it in a compromising position when attempting to settle a dispute.

The Doctrine of Attorney-Client Privilege

When emails, texts, and other messages are discoverable in litigation, the corporate counsel may try to invoke attorney-client privilege to protect those communications from seeing the light of day. However, attorney-client privilege is complicated for an in-house counsel because the “client” isn’t simply a person—instead, it’s the corporate entity with many individuals employed to advance the objectives of the corporation.

Attorney-client privilege is a legal protection that allows a client and his or her attorney to be able to communicate in a freely and with candor. This privilege belongs to the client and is a protection derived from statutes and case law that applies to certain communications between the client and the client’s attorney to encourage full disclosure of information between them.

Corporate Counsel Must Explain the Privilege

Corporate counsel need to realize for large, multistate, and multinational corporation, they must examine the differences between federal and state laws. However, there are some rules that apply almost all jurisdictions. For the attorney-client privilege to apply to a communication, the general rule require the following:

1. the communication is between a client and an attorney;
2. the client makes the communication, which contains confidential information;
3. the client makes the communication outside the presence of a nonprivileged third-party;
4. the purpose of the communication is to secure legal advice; and
5. the privilege hasn’t otherwise been waived.

Privileged communications can be written or verbal, however, only communications between or among “privileged” persons are afforded this protection.

Corporate counsel must understand that the underlying facts of a matter are always discoverable, and that privilege can’t be used to protect facts from being discovered.

Thus, because a fact has been told to corporate counsel doesn’t make it privileged. Also, client communications that don’t involve a lawyer aren’t privileged, even if the communication first came from an attorney and is then forwarded to an attorney for advice, or concerns how to handle a legal situation. Finally, the privilege can’t be used to facilitate or conceal a crime or fraud. Perjury and witness tampering are common concerns in the corporate setting.

Corporate Counsel Pointers for Written Communications

These written communications can cause a big headache for corporate counsel. Here are a few ways that the in-house legal team can educate employees on helping to avoid these migraines:

• Avoid speculation and rumors;
• Keep communications factual;
• Stay away from exaggeration or hyperbole;
• Don’t use profanity or share off-color jokes;
• Don’t denigrate co-corkers, customers, or regulators;
• Don’t discuss legal issues unless the communication is asking for legal advice from an attorney; and
• Don’t send communications when you’re upset… these can be the most damaging of all.

It’s best to treat all communications at work as formal business communications of the company. Corporate counsel should insist that they should be professional. And understand that whatever you write down never is never subject to total deletion or erasure. Someone has a copy of it somewhere.

Takeaway

Corporate counsel should educate their workforce to refrain from writing down communications unless absolutely necessary. These communications are not private and may be detrimental to the company in a lawsuit or investigation.