Preserving Privilege in Communications Involving In-House Counsel

Because in-house counsel often perform non-legal functions, thorny issues can arise in determining whether a communication is privileged. A determination of privilege depends on the confidential nature of a communication and whether it was made for the express purpose of securing or delivering legal advice, and it can be lost if a communication is sent to people who do not have a need to know. Kenneth E. McKay, a shareholder at Baker Donelson, and co-speaker Michael B. Hayes, a partner at Montgomery McCracken, tackled privilege issues faced by in-house counsel during a recent Strafford webinar. We highlight key takeaways, including which communications are privileged, preserving privilege, waiver risks and the special concerns that arise in internal investigations, mergers and acquisitions, parent-subsidiary relationships and when in-house counsel are asked to testify. See “Dispelling Myths About When Attorney-Client Privilege Applies to Communications With In-House Counsel” (Sep. 13, 2017).

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