The attorney-client privilege affects which communications between HR and attorneys as well as executives and counsel are confidential; some communications are, but others are not. The U.S. Supreme Court will clarify when "dual-purpose communications" are shielded from disclosure during litigation.
The Supreme Court "does not often weigh in on the scope of attorney-client privilege," said Jeffrey Mongiello, an attorney with Epstein Becker Green in Newark, N.J. "So, when the court does speak, it is consequential."
"Not all communications to and from counsel are considered privileged just because the communication is with an attorney," he said. "The communication must solicit or give legal advice" to be protected.
HR professionals and executives often include in-house counsel on communications that are focused on general business advice and not just legal advice, Mongiello added. If the communications are not protected, HR and executives need to be aware that the communications may be disclosed to adversaries during litigation.
Background on the Case
"In re Grand Jury concerns the scope of the attorney-client privilege where legal counsel provided advice on the tax consequences of a company's anticipated expatriation and also prepared several income tax returns in relation to the anticipated expatriation," said Matthew Scully, an attorney with Burr & Forman in Birmingham, Ala.
The company and the law firm—neither of whose names were disclosed by the courts—were served...
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