Attorney-Client Privilege in a Business Organization – Who Does It Apply To?

When an individual is pursuing a personal injury claim against a negligent business or defending themselves against a criminal charge, attorney-client privilege ensures their communication with their legal representative remains private and confidential. 

In these simple individual settings, the rules and regulations surrounding attorney-client privilege are fairly straightforward. In general, no outside parties are entitled to know what the client says to their lawyer. 

In a corporate setting, things can be a lot more complicated. 

First and foremost, it’s important to remember that corporate attorneys are typically employed by the business. As such, they represent the company, its shareholders, and their interests. They do not represent the employees or individual officers or directors of the organization in most instances. 

This means that the organization and its shareholders hold and control the attorney-client privilege.  

When an employee speaks to an in-house attorney, it is generally up to the company to decide if the exchange is privileged or not. If revealing the contents of the communication would harm the employee but help the business, the organization is free to waive its right to privilege. 

It’s also worth noting that not all conversations between business executives and their corporate lawyers can be classified as privileged.  

In the case of Southern Bell Telephone & Telegraph v. Deason, the Florida Supreme Court ruled that corporate communication can only be privileged if it meets the following requirements: 

• The communication would not otherwise have taken place if not for the contemplation of legal advice; 
• The employee initiating the communication did so at the request of their superior and the superior issued the directive as part of the company’s efforts to secure legal advice; 
• The content of the communication directly relates to the services being rendered by the attorney and the subject matter is within the employee’s duties; and, 
• The communication cannot be disseminated or distributed beyond the individuals who need to know its contents. 

Simply having an attorney present during a meeting or copied on an email doesn’t automatically render the exchange privileged.  

Business Litigation Lawyers You Can Count On 

To ensure that your organization has the appropriate policies, systems, and procedures in place to protect the applicability of the attorney-client privilege in a corporate context, it is important to seek the guidance of experienced business counsel.  Please do not hesitate to get in touch with our experienced business litigation lawyers at The Frazer Firm in Jupiter, Florida.  Reach out to our office today at 561-295-1551 to schedule a consultation.