Preserving Privilege in Communications Involving In-House Counsel

To be privileged, a communication must be to a lawyer acting in his or her professional capacity for the express purpose of securing legal advice, Kenneth McKay, a shareholder at Baker Donelson, explained during a recent Strafford webinar. Privilege also depends on the confidential nature of a communication and can be lost if a communication is sent to people who do not have a need to know, noted co-speaker Michael Hayes, a partner at Montgomery McCracken. Hayes and McKay tackled the thorny privilege issues faced by in-house counsel, 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. We highlight key takeaways. See “Dispelling Myths About When Attorney-Client Privilege Applies to Communications With In-House Counsel” (Sep. 20, 2017).

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