Here’s how to preserve work product privilege while working in-house

You’re a lawyer. You have a great in-house job, working with internal clients you know and trust. You talk and write notes and emails all the time about products, marketing materials, regulatory changes, and problems getting that new product to market. As a lawyer, all these conversations are privileged because, well, you’re their lawyer, right?

Not necessarily.

Blogger and in-house lawyer Sterling Miller’s latest post lays it all out for you, when privilege attaches and when it doesn’t. Working as corporate counsel is different from being in private practice. Lawyers at firms have a different way of working; clients come to them for the express purpose of getting legal advice and working on legal strategy. With in-house counsel, not so much. A lot of emails and casual conversations don’t come under the privilege unless, and this is important, they occurred while the client was interacting with the in-house counsel in his or her role as a lawyer.

Miller’s post is specifically about the work-product privilege. How and when does it attach? A few pointers:

It’s not a real privilege; it’s a doctrine or rule in most states’ civil procedure codes.

It must be prepared in anticipation of litigation. So those casual notes aren’t protected work product. What’s anticipation? It depends on the state and rules range from this is really happening to well, it could happen.

What is litigation, anyway? Everything from judicial proceedings to mediation to government probes. And don’t forget letters threatening litigation and internal investigations. There are more instances, but you get the general drift.

Everyone can create privileged work product if… Even your business side colleagues can prepare privileged work product if, once again, they’re created in anticipation of litigation.

How does it differ from attorney-client privilege? It’s more circumscribed and applies only to the materials. Attorney-client privilege extends to most communication.