Today, business employees can easily copy an in-house lawyer on emails where the primary recipient is a non-lawyer. This creates privilege issues for in-house lawyers since courts will question whether the email copied to a lawyer was truly seeking legal advice.
Emails between two non-lawyer employees that are copied to in-house counsel are dual purpose communications. An employee who merely copies an in-house attorney on an email to a non-lawyer does not automatically render the email privileged. Courts will first determine whether primary purpose of the copy sent to the attorney was to secure or dispense legal advice.
An email sent to counsel as a “cc” or secondary recipient decreases the chances of it being found to be privileged. However, sending an email to counsel as the primary recipient increases the chances that it will be found to be related to legal advice and, therefore, privileged.
Some courts have ruled that “cc’ing” an in-house attorney on employee-to-employee communications ipso facto means that the communication’s purpose could not be for legal advice. Other courts do not take this approach. However, the party asserting privilege over dual-purpose emails copying in-house counsel must prove that the communication’s primary purpose was related to legal advice.
Employers should train their employees that copying in-house lawyers on an email does not immunize the emails from discovery. Employees should copy in-house lawyers if they believe it is necessary to seek the participation of the lawyer, they should mark the email as “privileged and confidential,” limit dissemination and specifically ask the attorney for a response.
Lawyers who receive unsolicited cc and bcc emails should take the initiative and respond by stating that they understand the employee sent the email for legal advice purposes. A privilege-related response can often remedy the initial failure of the employee to seek legal advice by the cc to legal counsel. If challenged in court, the in-house lawyer must prove via sworn testimony that she or he received the email communication for the primary purpose of rendering legal advice. Thus, employees can make counsel’s effort easier by actually asking the attorney for legal advice in copied communications.
If you, as an employer, have employees cc’ing the company’s legal counsel, it is imperative to discuss with legal counsel steps to take to increase the likelihood that such communications will be considered privileged and confidential.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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