Q: Dear Ethics Lawyer, I am in-house counsel for a company, and field a steady stream of requests for legal advice from various business department heads. In looking at internal emails, I am finding that often the advice I provide is then quoted, forwarded or otherwise relayed to subordinates of those business department heads, usually without the presence (in-person or by email) of myself or any other lawyer. Does this risk waiving the privilege protection for my advice?
A: Generally not, so long as the legal advice (or request for information to facilitate legal advice) is conveyed to those employees who would otherwise be within the umbrella of privilege protection. In some jurisdictions, this means those with a “need to know it,” and in other jurisdictions, this means that the communication at least is “related generally to the employees’ corporate duties.” E.g., F.T.C. v. GlaxoSmithKline, 294 F.3d 141, 147-48 (D.C. Cir. 2002).
Please check the test for privilege protection in your applicable jurisdiction. Of course, for privilege to be maintained, the information must be conveyed and preserved in an atmosphere of confidentiality, i.e., if circulation of your advice extends to third parties, then protection can be lost.