Q: I work for a corporation. Is my conversation with its attorney privileged?
A: It might depend on what you are talking about. Important to keep in mind is that the corporation is the attorney’s client, not you. If your conversation is intended to help counsel provide the corporation with sound legal advice, it is protected under the attorney-client privilege—even if you’re not company leadership. See Moore v. Grau, No. 2013-CV-150, 2014 WL 11115797, at *3 (N.H. Super. Ct. Dec. 15, 2014). For example, if you witnessed alleged discrimination at work, the corporation’s attorney has to know what happened in order to provide sound legal advice to its client (your employer). Your conversation with the corporation’s attorney would be privileged for that reason. However, the facts of what you witnessed are never privileged, just the substance of your conversation with the attorney. If you run payroll and know women are paid less than men for the same work, that fact is not privileged, so you would have to disclose what you witnessed if you testified at trial. However, what you told counsel and any advice counsel gave to you is a privileged conversation. If asked at trial about your conversations with the corporation’s attorney, you would generally not have to disclose what was said.
Because the attorney’s client is the corporation, however, the attorney’s duty to keep certain information confidential does not prevent the attorney from sharing information you give him or her with your boss or whoever is making decisions on the corporation’s behalf based on counsel’s advice. That would be different if the attorney represented you personally instead of your employer.
Privilege becomes even more complicated when counsel is conducting an investigation, which is something different than counsel simply finding out what happened to provide legal advice. Depending on the situation, what you tell the investigator may or may not be privileged.
If your company has in-house counsel, it is also important to know whether you are talking with them in their role as providing legal advice or in their role as providing business advice. In the latter case, the conversation is not privileged.
Seek independent counsel should you wonder whether your conversation with your employer’s attorney is privileged, or want to understand who would have the right to know the underlying information once you share it.
Know the Law is a bi-weekly column sponsored by McLane Middleton. Questions and ideas for future columns should be emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.