When speaking with an attorney, we all generally understand how attorney-client privilege works. However, when a client is a Chicago business entity, the boundaries of where confidentiality and privilege begin and end often aren’t as clear, and as a result, can end up in misunderstandings over what is confidential communication and what is not.
For additional information on the nuances of attorney-client privilege for businesses, our Chicago business litigation lawyer at Ellis Legal explains more below.
Personal and Corporate Business
The confusion comes from a simple fact: corporations are their own legal entities capable of being represented by an attorney. But they do not speak; it takes human representatives to do that.
This obvious fact can lead to some difficult problems. One major problem is the blurring of the line of who exactly the attorney represents—the company or the actual person speaking to the attorney.
From the corporate representative’s standpoint, who knows that he or she is speaking on behalf of the company and, thus, is protected by attorney-client privilege, it can be easy to transition from protected corporate communication with the attorney to private communication that is not protected.
For example, a corporate representative speaking with a corporate attorney about corporate matters can easily mention the representative’s “defective car that he has to sue for,” or “my mom’s will that I have a problem with,” or any other personal legal matter.
The representative does not understand that what he is saying to the attorney, once it goes beyond corporate communication, may not be protected by the attorney-client privilege. It is also incumbent on the corporate attorney to inform the person that the attorney does not represent the employee personally so as to avoid any confusion—or, worse, a conflict of interest.
Who Can Speak to the Attorney?
Larger companies may have many employees. Is every employee conversation with a corporate attorney covered by the attorney-client privilege?
The answer is generally yes, so long as certain requirements are met.
The employee speaking to the attorney must be speaking about company business or legal matters or seeking advice from the attorney on the company’s actions. The employee also must have company permission to speak to the attorney or authority to communicate with the attorney in order to ensure that privilege is attached to the communication.
When Employees Leave
There can be legal issues when an employee who speaks to the company attorney about the company's business leaves the company. If another party asks that employee what he or she said to the company attorney or what was said to them, the company may have to ask the court for a protective order in order to preserve attorney-client privilege.
hy it is important to try to control who in your organization is communicating with the company attorney or who is sitting in meetings, calls, and other places where confidential information is being conveyed between the company and the attorney.
Speak with a Chicago business and legal ethics litigation attorney at Ellis Legal at (312) 967-7629 today to help you understand what your company counsel can do to help you.