Understanding the Limits of Corporate Attorney Client Communication

If you have a business, and you have a corporate attorney, you’re doing a good thing. But many companies lose some of the benefits of having an attorney for their businesses because they don’t understand the limits and the rules surrounding confidentiality, privilege, and having a company attorney.

Who Does the Lawyer Represent?

Yes, anything you say to an attorney who represents you, is absolutely privileged, private and confidential. But that otherwise easy concept becomes a little bit more difficult to understand, when the attorney represents your business.

That’s because your business is a separate legal entity, and the attorney represents the business. But corporations can’t speak on their own; they speak through their owners, officers, managers, or directors.

That means there are three parties involved: the attorney, the company, and whomever is speaking on behalf of the company.

Who Does the Lawyer Represent?

Remember that in most cases, an attorney for your company represents the company—not you, personally.

Anything you say to the attorney about the business, or the business’ interest, is of course, protected. But go beyond that, and you may not have attorney client privilege, because the attorney doesn’t represent you, personally.

That can also create conflicts of interest. Hopefully you wouldn’t ever do this, but asking the company attorney how you can steal from the company, or telling the attorney that you did something that violated your fiduciary duty to the company, can create a problem for you—the attorney’s client is the company, not you, personally, and now you’ve admitted that you did something against the company, the attorney’s actual client.

Who Can Speak with the Attorney?

Make sure that lower level employees understand how and when to speak with the company attorney. To protect the attorney client privilege, the lower level employee has to be speaking to the attorney about company business, but also, must have express authority from the company, to communicate with the lawyer.

They should also understand that the attorney again represents the company—not them individually, and thus, if they have a matter that they feel may put them in a situation that is in conflict with the company, that they should get their own, private attorney.

Speaking of lower level (or any) employees, if those employees leave the company, there is nothing preventing them from disclosing anything they told the corporate attorney to others, or telling anybody what the corporate attorney told them, or disclosing anything those employees may have overheard the company’s attorney saying.

That  means that you should be careful about who you give permission to speak with the company’s attorney. Don’t get sloppy—for example, by allowing 10 employees to sit in a cubicle and overhear your conversation with the company attorney.

Meeting Minutes

Although you can and should take meeting minutes, you do have a right to redact anything your corporate attorney says to the board, or officers, or shareholders, in any meeting, which would constitute privileged communications.

Make sure to review minutes before they are approved, to make sure no attorney client communication makes it into those meeting minutes.

A company attorney can be a vital piece of your business’ success. Call our Fort Lauderdale business litigation lawyers at Sweeney Law P.A. at 954-440-3993.

Sources:

leg.state.fl.us/Statutes./index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.502.html

fgcu.edu/generalcounsel/legalmatters/attorney-clientprivilege