The Privilege of Talking with Your Lawyer

I am pleased to share my latest post to The SHRM Blog.

Almost every HR professional deals with an attorney.  With strong relationships, sometimes you will refer to the lawyer as your lawyer. Not so fast. Here are 6 recommendations to keep in mind when you deal with “the” lawyer:

  1. The lawyer engaged by the Company represents the Company and not you. So be honest about work issues but be careful about issues that may be adverse to the Company. If you are thinking of exercising your legal right to bring a claim, do not give the Company’s lawyer a heads up! He or she, ethically, cannot retain your confidence.
  2. The attorney-client relationship covers only communications in which you ask for advice on behalf of the Company or the attorney gives advice to the Company through you.  It does not cover, for example, an offensive “joke” that you tell the Company’s lawyer in confidence.  By the way, don’t tell the “jokes.” Full stop.
  3. While only the Company can waive the attorney-client privilege, steps HR takes may be used to argue the Company has indeed waived the privilege. So, do not tell others, except those within the Company with a need to know (narrowly defined and fact specific) about the legal advice provided.
  4. Label e-mails where you seek or respond to legal advice “privileged and confidential” or “attorney-client privileged.” Avoid labels that may imply such but still can be less than fun to address in litigation, such as “Help! I am going to jail.” You should win on the privilege issue but who wants to win an issue that can be avoided.
  5. Do not put “privileged and confidential” or “attorney-client privileged” on business documents. That does not shield it from discovery. It only makes the label, where you legitimately have it, questionable. If everything is privileged, then nothing is.
  6. If you have a conversation with the Company’s counsel and a manager during which you make a business decision, that decision was made in a privileged call. Unless you want to risk having to disclose what you discussed, including the risks of the business decision, have a separate business conversation with the manager and without the lawyer.

These are but a few issues to consider when dealing with the Company’s counsel. More to common in a future blog!

Oh, by the law: this is not legal advice :-).

Jonathan A. Segal

About Jonathan A. Segal

Jonathan’s preventive and corrective approach to employment/HR issues includes counseling, policies, training, agreements and audits. Areas of substantive focus include, for example: gender equality, wage and hour compliance, social media and employee engagement. When Jonathan isn’t counseling employers or dedicating his time to SHRM and the HR community, he can be found volunteering his time and efforts to animal rescue. Jonathan is also mad about Mad Men, writing and speaking on the employment issues arising out of the MadMen Era! Follow Jonathan on Twitter @Jonathan_HR_Law.