The Attorney-Client Privilege for In-House Counsel When Negotiating Contract

By Van Deusen, Mark C. | William and Mary Law Review, March 1998 | Go to article overview

The Attorney-Client Privilege for In-House Counsel When Negotiating Contract


Van Deusen, Mark C., William and Mary Law Review


Traditionally, corporate executives in need of legal advice turned to private, outside law firms. Today, however, executives increasingly are seeking legal advice from "corporate" or "in-house" attorneys.(1) Studies estimate that ten percent of all practicing attorneys work for corporations.(2) The work of these attorneys has changed significantly in recent years. They routinely perform more substantive work, including litigation.(3) Corporations have found that in-house counsel can provide fast, effective legal advice for less cost than outside law firms because an in-house counsel has greater knowledge of the corporation and the issues that it routinely faces.(4)

Corporations turn to in-house counsel, as they do with all attorneys, in part because of the assurance that the attorney-client privilege will guard from public view communications between attorneys and corporate executives.(5) For in-house counsel, however, defining and maintaining that privilege involves unique risks and problems.(6) In-house counsel often perform dual roles, acting as both executives and attorneys.(7) Additionally, attorneys without formal business duties often intermingle business advice with legal advice.(8) Although courts have held that the attorney-client privilege does not protect business advice provided by an attorney,(9) these same courts have failed to articulate clearly when the privilege protects communications containing mixed legal and business advice.(10) Apart from vague generalities and vacuous oracular statements,(11) courts have failed to establish a useful set of principles that would enable attorneys and clients to determine when the attorney-client privilege will shield mixed legal and business communications.(12) An in-house counsel's plight is even more precarious because courts are reluctant to presume that the attorney-client privilege will protect an in-house counsel's communications--a presumption enjoyed by outside attorneys.(13) Given the difficulty defining what is a protected mixed business and legal discussion and the apparent judicial prejudice against in-house counsel, corporations and their in-house counsel confront great uncertainty about the scope of the attorney-client privilege.

An effective evidentiary privilege cannot exist in a sea of uncertainty. As then-Justice William Rehnquist stated in his majority opinion in Upjohn Co. v. United States:(14) "An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all."(15) The uncertainty surrounding the attorney-client privilege for in-house counsel threatens to vitiate the benefits of the privilege for corporate clients and to lessen the benefits corporations receive from maintaining in-house legal departments.(16)

The uncertainty faced by in-house counsel was highlighted by the Georgia-Pacific Corp. v. GAF Roofing Manufacturing Corp.(17) decision. Georgia-Pacific held that the attorney-client privilege did not apply to conversations between corporate officers and an in-house counsel who negotiated a complex environmental liability provision of a commercial contract.(18) This decision sent shock waves through the corporate legal community,(19) raising new concerns about an attorney's ability to serve as a negotiator while retaining the protections of the attorney client privilege.(20)

This Note examines the Georgia-Pacific decision and argues that courts should adopt a new standard for determining when the attorney-client privilege protects a mixed business and legal discussion between a client and an in-house counsel serving as a negotiator. After exploring the history and rationale for the attorney-client privilege,(21) this Note identifies the unique problems faced by corporations and in-house counsel.(22) This discussion is followed by an outline of the decisions applying the attorney-client privilege to corporations and in-house counsel. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Attorney-Client Privilege for In-House Counsel When Negotiating Contract
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.