Attorney-client privilege is one of the most important tools for HR when dealing with risk. This privilege is a foundational legal principle for centuries and allows clients to discuss all legal issues without worrying that the conversation may come back to haunt the client. By having honest conversations, it allows the lawyer to best represent the client. However, the privilege does not protect the underlying facts that may be contained within the communication, just the communication with the attorney.

There are some things not bound by privilege.  For example, HR cannot hide documents or other tangible evidence with the attorney and claim privilege.  Further, even if the problem is discussed with the attorney, if non attorneys know of the issues and information, the privilege may be broken.  Talking to the attorney does not give an automatic right to the privilege.  In addition, sending an email to leadership or your boss about the issue at hand and marking the email confidential does not guarantee the email is protected communication. 

So, when should HR consider the privilege?  If there is a potential lawsuit that poses high risks for the employer, HR should talk to an attorney before any investigation is begun.  The attorney should drive the HR investigation.  Any written communication to the attorney needs to be marked “privileged and confidential/prepared for attorney,” when discussing a case.  Moreover, if documents, reports, or analysis are completed in the course of the investigation, just writing confidential may not mean it is protected.  The attorney has to be involved.

That doesn’t mean the attorney does the investigation.  If so, the attorney could be called as a witness as an investigator and whatever was discussed with them could be fair game in court. 

Here are some recommended steps for making it more likely that the attorney-client privilege will apply:

1.  Send all correspondence to the attorney.  If you call the attorney first, follow-up with a written communication summarizing the call.
2. Ask the attorney at the end of the communication for their opinion and guidance.  It shows intent was to discuss with the attorney the issues at hand.
3. Make sure that the written communication states “privileged and confidential/prepared for attorney.”
4. Don’t have a lot of cc’s on an email to the attorney.  The more on the email, the less likely the privilege will apply as it may be deemed “common knowledge.”
5. Keep the communications with the attorney confidential.  Don’t discuss with anyone who doesn’t need to know; only with those the attorney directs you to do so, e.g. your boss, senior leadership, etc.

By following these steps, it will be more likely that the attorney-client privilege will apply than not.

There are other activities in HR that the practitioner needs to be wary of.  For example, payroll has a button for equal pay analysis.  Don’t press that button unless the attorney authorizes it first.  If so, anything found is fair game for court.  The analysis accuracy is unclear, and the results of the analysis may be inaccurate and damaging. 

With respect to employees using a company computer to send emails to their legal counsel, there may or may not be a privilege.  It will be important for the employer to have an electronic monitoring policy.  Therefore, the employer should review the following:

(1) Does the employer maintain a policy banning personal or other objectionable use?

(2) Does the employer monitor the use of the employee's computer or e-mail?

(3) Do third parties have a right of access to the computer or e-mails?

(4) Did the employer notify the employee, or was the employee aware, of the use and monitoring policies?

If so, the employee will not likely be able to assert privilege, but it depends on the jurisdiction. 

HR needs to work with legal counsel to ensure that a process is in place and training is provided to all HR and other required employees as to how to ensure privilege and confidentiality is maintained when specific situations necessitating attorney-client communications or HR actions.

Source:  The National Law Journal 10/1/2021. SHRM 3/4/2020, Cooper Scully 12/10/2018