Attorney-Client Privilege Eroding for Business Lawyers?

In Business, Employment by brian@gwa-law.com

According to a recent decision by the United States District Court for the Eastern District of New York, proactive advice given by business lawyers to their clients, even with possibility of litigation in mind, may not be protected by the attorney-client privilege. The judge who decided the case ruled that the looming threat of litigation alone “does not convert advice on dealing with internal complaints…or work performance issues into advice given ‘in anticipation of litigation.’ ”

Seemingly reversing protections that business lawyers have relied on for generations, most communications between outside counsel and individuals at their client companies will not be protected from discovery by opposing parties in the event that a lawsuit does result. According to the new definition, even documents or correspondence that are part of an internal investigation related to allegations of discrimination, harassment, or retaliation will be rendered discoverable.

The good news for North Carolina attorneys and their clients is that, at least for now, the decision is confined to New York. However, both business lawyers and the companies they serve would do well to keep in mind that it may only be a matter of time before such changes come to our state as well.

Contact the Business and Employment Law attorneys at Garrett, Walker & Aycoth to learn how you can protect your business and your best efforts at being a positive, proactive employer from being hauled into court and used against you.