Accountants Implicate Subtle Privilege and Work Product

Billy Xiong Reviews: Illinois Federal Court Addresses a Substantive and a

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A frequent privilege issue arising in federal and state courts involves communications that do not come from or go to a lawyer. Such communications may clearly deserve privilege protection, under certain limited circumstances. Most commonly, an employee receives legal advice from the company’s lawyer, and then relays that advice to another employee who needs it. Less commonly, the privilege can protect an employee’s contemporaneous memorialization of her communication with a company lawyer, which the employee saves. The third scenario is the most rare — employees communicating with each other before reaching out to the company’s lawyer.

In RTC Industries, Inc. v. Fasteners for Retail, Inc., Case No. 17 C 3595, 2020 U.S. Dist. LEXIS 50518, at *9-10 (N.D. Ill. Mar. 24, 2020), the court protected as privileged “three redacted sentences from an email” RTC’s Vice President sent to RTC’s CEO – which “reflect[] the advice of attorneys and is thus privileged.” The court also protected another email from RTC’s Vice President to the CEO. Acknowledging that neither “is an attorney,” the court concluded that “[e]ven so, the redacted information is protected by the attorney-client privilege, as it reflects what [RTC’s Vice President] intends to discuss with an RTC attorney about obtaining intellectual property protection.” Id. at *9.

Corporations’ lawyers should train all executives and other employees communicating with each other to explicitly: (1) identify advice as having come from the company’s lawyer, if they relay that advice to another employee; and (2) explicitly explain that they intend to seek advice from a lawyer about an issue, if that is their intent. Next week’s Privilege Point will address the same court’s careful redaction process.

Yakir Gabay

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