Merely Copying In-House Counsel Does Not Necessarily Establish Attorney-Client Privilege

Businesses who employ in-house attorneys frequently assume that copying their lawyer on internal communications shields the communications from discovery because of the attorney-client privilege. In 1981, the U.S. Supreme Court articulated the rule that the attorney-client privilege protects communications (a) between attorneys and clients (b) that are maintained in confidence and (c) that were made for the purpose of obtaining or providing legal advice (see Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The Upjohn court made it clear that the privilege applies not only to the lawyer’s communications that convey legal advice, but also to the client’s “giving of information to the lawyer to enable [the lawyer] to give sound and informed advice.” Based on this rule, confidential communications between a lawyer and client may NOT be protected by the attorney-client privilege if the communication is NOT made for the purpose of obtaining or providing legal…