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The Attorney-Client Privilege
In-house counsel, and the outside counsel they hire, regularly handle product liability lawsuits. Attorney-client privilege issues are woven into the fabric of such suits. Written and oral communications between attorney and client may touch upon vital subjects such as product history, case strengths and weaknesses, negotiation posture, witness selection and trial strategy. However, many attorneys do not understand the limitations of the attorney-client privilege, particularly as it applies to in-house counsel. This article provides a short primer on the boundaries of the attorney-client privilege as applied to in-house counsel.
The Attorney-Client Privilege
The attorney-client privilege, at its foundation, recognizes that sound legal advice serves public ends and that such advice or advocacy depends upon the lawyer being fully informed by the client. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). By safeguarding communications between attorney and client, the privilege ensures that an individual who seeks legal advice will be free of fear that his secrets will be revealed. In other words, shielded by the privilege, the client is induced to communicate things that he might not otherwise disclose. As the Supreme Court explained in Upjohn, the privilege “is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.” Id. at 390.
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