The use of corporate attorneys is growing, but too many in HR remain ignorant of what can and can't remain private.
In this litigious age, lawyers have become integral corporate players. HR professionals in particular rely on them to clear up the fine lines of employment law. But, and this is a big warning, not everything you share with legal counsel remains safely under the lawyer-client privilege. What you say, to whom you say it and in what form, can drastically impact what many consider to be a catch-all privilege. And the last thing you want when your company is defending itself against an employee is to be forced into defending itself against-well, itself-in the forms of old memos, documents and interviews. L. Marshall Smith, who has his own practice in St. Paul, Minnesota, and is counsel to the law firm of Jackson and Lewis in Los Angeles, cautions HR professionals on the subject.
How often does information shared with counsel end up haunting an employer?
It comes up all the time. It's one of those things for which a little bit of prevention and forethought can probably overcome some potential problems down the line.
The crux of the misunderstanding is that attomey-client privilege protects communication between employers and their attorneys but not facts, correct?
Historically, one of the basic concepts of encouraging people to talk to lawyers and having lawyers help with the dispute-resolution process has been this notion of confidentiality. It means if you go talk to your lawyer down the street about your will or a family matter, that's confidential. You, as the person who gave the information, are the one who has control over it. In other words, the lawyer can't go around and talk about it unless you say it's OK. Where's the problem?
This confidentiality notion is aimed at the conversation you have. The idea is to encourage you to talk so the lawyer will know everything about the problem in order to resolve it better. But it doesn't protect information that you just know or facts that are in your head. So if you observed one of your cohorts doing some things that were either contrary to company policy or inappropriate in some other way, and then you reported it, your report to a general counsel or attorney should be confidential and privileged. But the information and your observations, what you actually saw, that can't be privileged.
And that's where employers get Into trouble?
Sometimes people get that [difference] confused. Even lawyers do sometimes, especially with documents created in a situation in which they may not have been confidential at the time they were put together. For instance, memos saying, "Have you checked into this?" or, "We're concerned about that." People will sometimes hope if they give their lawyer memos that never had a lawyer involved at all, somehow that will insulate them. It really doesn't.
Can you give an example of what would be protected?
If a person who saw [potential workplace illegalities] talked to the general counsel and said, "I think we ought to check into this," and the two had a heartto-heart conversation about [the problem], that's a whole other ball game. Now what you're doing is you're communicating information, you're looking for advice. That's the kind of communication this privilege is aimed at to encourage people to tell their lawyers the whole story and to get all the information out. Your observations, what you saw and what you heard, can't be protected, but when you talk more about [the situation] and express opinions and get opinions, that's protected.
What do you mean by opinions?
When you talk to the attorney and he or she says, "Here's what that means"-in other words, the attorney's rendering an opinion-that's going to stay protected. When the lawyer renders an opinion or gives advice, that should be confidential, so you're free to get the information you need to manage your affairs. …