Jeffrey P. Mongiello, Associate in the Litigation & Business Disputes and Health Care & Life Sciences practice, in the firm’s Newark office, was quoted in the Bloomberg Law Daily Labor Report, in “Employers Await High Court Clarity on Attorney-Client Privilege,” by Khorri Atkinson.
Following is an excerpt:
The US Supreme Court’s upcoming look at whether attorney-client privilege extends to business-related communications has particular implications for employers and their counsel, who routinely exchange information that blends legal and business advice.
The justices last month agreed to take up In re Grand Jury to clarify the standards that federal courts should use to determine what types of information exchanged between a lawyer and a client is privileged and thus protected from disclosure during litigation.
In the case, the US Court of Appeals for the Ninth Circuit ruled in 2021 that a law firm must turn over requested tax-related records because its corporate client primarily sought business, not legal, advice.
But federal appeals courts’ conflicting tests for determining what information is privileged is undermining the doctrine’s purpose of promoting candid communications between clients and their attorneys, particularly in the employment context, legal observers say.
Human resources professionals and managers communicate with in-house or outside counsel about a wide variety of employment issues where legal and business matters often overlap, such as written discussions on compliance with new federal workplace regulations or disciplinary matters. …
Be Proactive …
To help prevent future legal headaches, companies should operate under the assumption that the more stringent Ninth Circuit standard will be ultimately will be applied, attorneys said. This means employees and counsel should explicitly identify in their written communications when legal advice is their primary purpose, so they can preserve information that may otherwise lose protections. …
Employees and their counsel should provide context contemporaneously because “privilege determinations are usually done months or years after the fact in litigation,” said Jeffrey P. Mongiello of Epstein Becker Green PC.
“The reality of this situation is that a lot of employers send their day-to-day communications, not thinking about an email being produced during discovery or being shown to them at deposition one day, let alone thinking about privilege,” he said. “But if they’re writing something they know must be shielded,” they should take caution.