Be Careful Of The Limits Of Attorney Client Privilege

You probably know that any communication that goes between your company and your company’s lawyer is privileged and confidential. It cannot be revealed to anybody, and nobody can compel you to reveal the contents of that communication.

Google Gets in Trouble

But as tech giant Google learned, the attorney client confidentiality should not be abused.

Google got in trouble because of a corporate policy that it allegedly had of cc’ing its attorneys, on every single email that it sent—regardless of whether the email actually contained legal advice or sought legal advice. There was some indication, according to an investigation by the Department of Justice into the practice, that Google may have encouraged its employees to try to ask questions of the lawyers that were cc’d on the emails, to give the emails an even stronger hint of attorney client privilege.

Google’s goal was, again, according to the investigation by the government, to keep as much information private and shielded from discovery.

But the Department of Justice apparently caught on to this practice, and in the course of a lawsuit, asked a judge to look into this practice of automatically cc’ing Google’s lawyers on every email.

Limited Effectiveness

Aside from the moral and ethical implications of such a practice, it likely would not have been effective anyway. That’s because simply ccing a lawyer on an email, doesn’t transform that communication into confidential information.

You can’t turn non-confidential information into confidential information, just be giving it to corporate attorneys. So, for example, let’s assume a customer complains about your business practices. You want to make sure that letter is never discovered, by anyone, or in any lawsuit. So, you give it to your lawyers.

Just giving that letter to the lawyers doesn’t make it communication between you and your lawyers. It’s just a non-confidential letter that you gave to your company lawyers.

Review and Redactions

The other problem that Google would have potentially had, is that in some cases, a court can review confidential documents and redact (strike or get rid of) the confidential information, but allow other information in the email to be discovered.

That means that simply asking a lawyer a question in an email, wouldn’t necessarily protect the entirety of the email from ever being discovered.

Waiver

Remember also that if communication with a lawyer is shared with someone else, the confidentiality could be waived. So, for example, if you sent a letter to someone outside your company, even if you do cc your attorney, you likely have waived the privilege—the person outside of your company has now been privy to what should have been confidential communication.

None of this is to say that attorney client privilege isn’t strong; it most certainly is, and is one of the most privileged forms of communication that exists in the law. It just means that it is a privilege that your business should understand, to make sure that you know, in advance, what communication is safe and confidential, and which is not.

Call our Fort Lauderdale business lawyers at Sweeney Law P.A. at 954 440-3993 today to help you with your day to day business legal decisions.

Sources:

arstechnica.com/tech-policy/2022/03/google-routinely-hides-emails-from-litigation-by-ccing-attorneys-doj-alleges/

bloomberg.com/news/articles/2022-03-24/google-rebukes-doj-claim-it-hid-documents-by-cc-ing-lawyers