How Much Can You Tell your In-house Counsel? |
General Counsel Consulting
About us Attorney resources Employer resources Job listings Submit resume Contact Us
General Counsel Consulting
Sign In
Forgot your password?
New User?
Most Influential
Legal Recruiters By
General Counsel
service in helping
my organization
recruit for a hard
to fill position.
They did extensive
work on the front
end to understand
our needs and
our culture and
began referring
highly qualified
candidates almost
Melinda Burrows
Deputy General Counsel
- Litigation and
Compliance, Progress
Energy Service Company

Jobs for Law Students
Law Student - Law Firm in San Jose, CA
USA-CA-San Jose
File Clerk The candidate will be organizing and filing documents for client files. Creating compute.... [more]

Click here

Job of the Day
Assistant General Counsel
Phoenix Arizona United States

As our Assistant General Counsel you will serve as a legal advisor on a range of substantive areas, ...

Employer Articles
Article Archives

How Much Can You Tell your In-house Counsel?

Any company or employer who can use a good in-house counsel to full effect benefits enormously, but many employers trip up during that exercise. Many HR employees as well as managers take it as granted that anything told or communicated to an in-house counsel is automatically confidential and under attorney-client privilege. However, and regrettably, it is not so.

In-house counsel require special attention with regard to what they learn

The in-house counsel is an employee who is especially disturbed as torn between two often-conflicting sets of standards - that of pursuing what is best for your business, and that of safeguarding his professional career from claims of misconduct. As a lawyer he has to remain loyal to rules of conduct governing his professional license and as your employee, he also has to remain loyal to the company. So, in order to make best use of an in-house counsel, it falls upon the employer to make things easy by training his staff as to where the lines should be drawn regarding communications with in-house counsel.

Quite often, what ordinary people would view as being under attorney-client privilege would be found as business conversations not fit for confidentiality. Since in-house counsel are involved in providing advice on many issues that are intricately entwined with business issues, unless a communication can be clearly marked as seeking legal advice, it does not earn the attorney-client privilege.

When are communications with in-house counsel truly protected by attorney-client privilege?

Though nothing is absolute, and we would begin with the disclaimer that this is not legal advice and you are better off consulting a legal practitioner before deciding on anything, generally established rules say corporate communications with an in-house counsel enjoys the attorney-client privilege, when"
  1. The communication has been made to the in-house counsel in his/her capacity as a lawyer
  2. The communications made to the in-house counsel falls within the scope of official duties of the person who made such communications
  3. The person who made the communication to the in-house counsel was aware that the communication was being made for the purpose of seeking legal advice for the company
  4. The communication with the in-house counsel was clearly of confidential nature and its confidentiality was maintained otherwise than being in the knowledge of the in-house counsel
Problems of communicating with in-house counsel

The bottom line of confusion in communicating with in-house counsel begins with the notion of automatic privilege as communication made to a lawyer. This is as far from the truth as it can be. Not all communication comes under the protection of attorney-client privilege, and where it does not, the attorney can be compelled to disclose evidence against you.

Another quick and easy way to determine the bindings on your in-house counsel is to ask for a copy of his professional malpractice insurance contract, just to make sure that he is covered. Usually, professional malpractice insurance contracts and policies for in-house counsel spell out in detail the conditions under which an in-house counsel would not receive insurance - they are good pointers to the limitations of an in-house counsel.

The last word

Rather than use my own words, I would like to quote from one of the first articles I had ever read on the issue, by Gillian Flynn: "The walls have ears. [People] get to thinking-especially when doing e-mail or sending memos-that what they're sending is really private. If there's going to be any kind of dispute down the road, the odds are it's not going to be private. You hate to say this to people, but whenever you're sending an e-mail or writing a memo, you should take a minute and think what it would look like if somebody saw it other than the person you're sending it to. How would it look for you and the company?"

Believe it or not, the scenario hasn't changed much in the last fifteen years since I read that article.

Ref: Gillian Flynn, "How Much Can You Share Safely with Legal Counsel?," Workforce Aug. 1997.

Facebook comments:

Related Articles

Corporate Counsel Project Growth In-House

In March 2007, the Association of Corporate Counsel and Lexis-Nexis released the results of its 2006 Census of In-house Counsel. This study provides detailed information regarding U.S. Corporation’...

Evolving Role of In-House Counsel: Adding Value to the Business

Recent events in the United States, United Kingdom and elsewhere have fostered a global discussion about the role of lawyers inside companies. Corporate general counsel and law departments face new r...

The Benefits of Working with a Legal Recruiter Rather than Conducting a DIY Search for In-House Counsel

No one knows the value of professionals more than those who run businesses. In every business today, there is a paramount need to optimize time. For business leaders, the optimized use of personal tim...

How to Attract Quality In-House Counsel to Your Company

Even though, to the knowledge of everyone concerned, including that of your boss, colleagues, or partners, the market is overflowing with qualified lawyers available at the going rates of a dime a doz...

In-House Counsel Retention: The Only Way to Retain Wolves is by Building a Pack

When it comes to retaining in-house counsel, many strategy aspects and problems are similar to those of other employees and many are not....

Choose an In-House Counsel as You Would Choose a Business Partner

Actually, when you choose a general counsel, you are choosing a business partner, whether you admit it or not. Unless you are way off in understanding why you need in-house counsel at all, you’d kno...

Why Hiring an In-House Counsel Can Help Your Business

Businesses and business owners often wonder, especially during their formative years, whether they should at all hire an in-house counsel or not, and whether an in-house counsel is an unnecessary over...

In-House Counsel Join the Blogosphere

Millions of Internet users post or read online blogs, and that number is slowly beginning to include in-house counsel.Of the 147 million Americans who use the Internet, about 57 million read blogs and...

Five Tips for Hiring Great In-house Counsel

The quality of people in the in-house law department of a business, and their reputation for effectiveness as well as performance, contribute significantly and in a critical manner to the health of th...

Lewis Shender, Vice President and General Counsel for Jenny Craig, Inc., Enjoys the Hands-On Involvement of Being an In-House Attorney

Like many other young boys, Lewis Shender had big career plans set for himself when he was in grammar school. In addition to wanting to be a Major League Baseball player, a rock star, and a profession...

Article ID: 120295

Article Title: How Much Can You Tell your In-house Counsel?

Comment not found for this article......
+ Add Comment

  • Share this story:

  • BlinkList
  • blogmarks
  • Digg
  • Facebook
  • Google
  • Sphinn
  • MySpace
  • NewsVine
  • Simpy
  • StumbleUpon
  • Technorati
  • E-mail this story to a friend!
  • Print this article!
  • Faves
  • Furl
  • Netvouz
  • Slashdot
  • Spurl
  • Yahoo! Buzz


Shoot for the moon. Even if you miss it, you will land among the stars.