For communications to receive privilege, they must be made between an attorney and a client, in confidence, for the purpose of seeking legal advice. An attorney’s mere presence in the room, on a call, or included in an email does not automatically confer attorney-client privilege to that communication. Nor does the discussion of non-legal business elements automatically waive that privilege. The purpose of the meeting or communication must be primarily or predominately engaging the attorney to provide legal advice. This final element can be especially difficult to overcome for careless or violative electronic communications that must be preserved in full.

This line can become more blurred when the communication is made with in-house counsel. While the rules say that privilege applies without distinction to internal or external counsel, in practice, they receive distinctly different treatment. A primary cause of this distinction is due to an in-house counsel’s role in a modern firm.

Firms are increasingly relying on internal corporate counsel to perform in expanded executive roles over the business aspects of a company. Many financial firms have lawyers at the partnership level or otherwise involved in the management of a firm. When in doubt about an attorney’s role in a firm, the best first test is to look to the title on his or her business card. Even if in-house counsel is properly designated, privileged communications still require the pursuit of legal advice.

Proactive firms should implement training, not just for their senior executives, but for all staff on important practices to preserve attorney-client privilege. Any staff member that is entrusted with sensitive documents or information must rely on the guidance of their firm and its counsel when handling privileged material. Society’s comfort with technology has brought with it an inattention to the way electronic communications are treated.

A firm should have policies in place that limit casual transmission of privileged information. This is especially important given the ease by which regulators can index, access, and produce it in front of hearing panels and juries. While it always remains an attorney’s responsibility to manage and protect privilege, a smart firm takes its own measures to implement systems that ensure their privilege remains intact.

This is the first in a three-part blog series on regulatory examinations and attorney-client privilege. Next up, we'll be discussing social media and how privilege protections can be waived.