Jeffrey P. Mongiello, Associate in the Litigation & Business Disputes and Health Care & Life Sciences practice, in the firm’s Newark office, was quoted in SHRM, in “Supreme Court Will Clarify Scope of Attorney-Client Privilege,” by Allen Smith.
Following is an excerpt:
The attorney-client privilege affects which communications between HR and attorneys as well as executives and counsel are confidential; some communications are, but others are not. The U.S. Supreme Court will clarify when “dual-purpose communications” are shielded from disclosure during litigation.
The Supreme Court “does not often weigh in on the scope of attorney-client privilege,” said Jeffrey Mongiello, an attorney with Epstein Becker Green in Newark, N.J. “So, when the court does speak, it is consequential.”
“Not all communications to and from counsel are considered privileged just because the communication is with an attorney,” he said. “The communication must solicit or give legal advice” to be protected.
HR professionals and executives often include in-house counsel on communications that are focused on general business advice and not just legal advice, Mongiello added. If the communications are not protected, HR and executives need to be aware that the communications may be disclosed to adversaries during litigation. …
Dual-Purpose Communications in the Workplace
Dual-purpose communications often arise at companies, Mongiello said.
“HR professionals and executives are routinely engaged in dual-purpose communications with counsel on a wide variety of areas where business advice and legal advice overlap, such as compliance,” he noted. “For human resources professionals, this may include communications that discuss whether to terminate an employee and evaluating whether a noncompete clause in the employee’s contract would be enforceable.”
An executive may seek advice from counsel on newly implemented regulations, which could include legal advice on the scope of the regulations and nonlegal, business advice on whether the existing company’s employees are already trained to handle any newly imposed responsibilities. …
The Supreme Court will resolve how to determine what the purpose of the communication is, Mongiello noted. “Currently, making that determination differs based on the geographic location in which the communication arose. This is particularly challenging for businesses with national operations,” he said.
He said that the decision will provide a uniform standard and help clarify for HR and executives whether the communications they are having with attorneys are privileged.