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<b><i>Practice Tip:</i></b> The Attorney-Client Privilege and Former Employees

By Andrew K. Solow, Jennifer L. Taiwo and David A. Kerschner
October 02, 2015

Undoubtedly, the attorney-client privilege is integral to every attorney's practice, regardless of whether that attorney's practice focuses on litigation, regulatory or transactional work. Yet, despite the ubiquitous nature of the attorney-client privilege, attorneys generally understand far less about the nuances of the invocation of the attorney-client privilege than they should, particularly in the context of interacting with former employees of a corporate client. In the face of seemingly endless regulatory and compliance investigations, along with protracted product liability, antitrust, securities and other corporate litigations, the need to communicate with and prepare former employees for any kind of testimony is ever-increasing. As this need increases, so, too, does the practicing attorney's need for a solid and accurate understanding of when and precisely how the attorney-client privilege applies in the context of interactions with former employees. This article provides a refresher on the parameters of the attorney-client privilege and briefly discusses relevant case law addressing the application of the attorney-client privilege to interactions with former employees. It then sets forth the implications of misunderstanding the attorney-client privilege and presents guidelines to follow when dealing with former employees.

The Attorney-Client Privilege and Corporations in General

The attorney-client privilege protects communications: 1) between a client and his or her attorney; 2) that are intended to be, and in fact were, kept confidential; 3) for the purpose of obtaining or providing legal advice. United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011); see also Fisher v. United States, 425 U.S. 391, 403 (1976). The purpose of this privilege is, of course, to encourage clients to make full disclosure to their attorneys. Fisher, 425 U.S. at 403.

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