WORKPLACE LAW - Employer in Salinas

Question:

I hired a consultant to make recommendations as to certain workplace practices. The consultant requested that my attorney be involved in order to protect the attorney-client privilege. What is the attorney-client privilege and why would that be an issue with respect to workplace practices?

Answer:

The attorney-client privilege is an essential element of our legal system. The purpose of this privilege is to encourage full disclosure between attorneys and clients. The attorney-client privilege is an important benefit to the client because communications covered by the privilege are protected from discovery by adverse parties in litigation. By contrast, communications on the same issues between a client and a non-attorney consultant are not privileged and therefore, disclosure can be compelled. For example, if an employer’s attorney informs it that one of its hiring policies is illegal, that communication would not be subject to disclosure at a later trial involving an applicant impacted by that policy. In contrast, if an employer was informed by a non-attorney consultant that a hiring policy is illegal, that communication would be subject to disclosure and might be relied on by a jury in imposing liability on the employer in later litigation.

The attorney-client privilege applies to communications related to factual information and to communications that constitute legal advice. It also applies to communications in anticipation of litigation and to legal advice where no litigation is threatened or anticipated. The basic elements of the attorney-client privilege are:

  • The party seeking the protection of the privilege must be an actual or prospective client of the attorney;
  • The communication must be between the client and the attorney acting as counsel for the client;
  • The communication must be made in confidence and outside the presence of third parties;
  • The purpose of the communication must be to secure or provide an opinion of law or legal assistance.

Communications with agents of an attorney, such as a consultant employed by the attorney or members of the attorney’s staff, may also be privileged. Moreover, the attorney’s communications with the client’s agents, including employees outside the client’s management team, may also be privileged. Although the attorney-client privilege may be defeated by disclosures to third parties, an otherwise privileged communication does not lose its privilege because it is communicated by electronic means, such as e-mail, cellular telephone, or fax, or because persons involved in delivery, facilitation, or storage of e-transmission have access to the communication.

In addition to being cautious about communications with non-attorneys on issues that may lead to legal liability, the following steps should be taken to help preserve the attorney-client privilege. With respect to oral communications, it is best that the attorney actually attend and participate in any discussions relating to the issues in question. The only attendees present at these meetings should be those who have a need to know the facts relating to these issues. Non-client parties should not attend such meetings and care should be taken not to divulge privileged communications in minutes or other summaries of the meetings that may be distributed beyond the “need to know” group.

With respect to written communications, the documents should be marked “attorney-client privileged communication” and distribution should be limited to those with a need to know. The documents should be maintained in a confidential manner in a secure place. The attorney should be advised immediately of any inadvertent disclosure of the documents so that steps may be taken to rectify the situation and possibly protect the privilege.

For these reasons, in appropriate cases, clients will benefit from involving their attorney in evaluating workplace practices.
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