Bloomberg Law Guest Article: Everyday Attorney-Client Privilege and Work-Product Ethics for Labor, Employment, and Employee Benefits Attorneys

07/22/2013


This article reviews recent developments that attorneys practicing in the labor, employment, and employee benefits areas must address to effectively advise and represent their clients and to facilitate their clients’ ability to claim that certain attorney-client communications are protected by the attorney-client privilege and work-product doctrine.1 While these protections are the client’s to claim, the attorney advising the client is best able to assist the client in documenting privilege and exemption claims and to advise the client when communications may be at risk of nonprotection based on (i) application of the fiduciary exception to the attorney-client privilege or work-product doctrine; and (ii) other ways the client’s privileges and exemptions may be at risk. This article reviews recent developments in attorney-client privilege and the work-product doctrine in the context of the labor, employment, and employee benefits practice areas. As discussed below, these practice areas frequently overlap factually. As a result, the failure to consider the impact of factual nuances in each practice area may create risks when an attorney seeks to protect the client’s privilege or to rely on the attorney work-product exemption. Moreover, attorneys must carefully consider the ethical implications of their actions when performing tasks and communicating with clients so as to protect and preserve a client’s claim of attorney-client privilege or work-product exemption. A checklist for preserving attorney-client privilege can be found here.

To be sure, the party or person claiming the privilege or work-product exemption bears the burden of proving that the privilege applies. Accordingly, the claiming party should document when the privilege or exemption is applicable to documents, statements, communications, or other work products that are part of litigation, investigations, audits, or other disputes. Preparing such documentation at the time the document or communication is prepared:

  • helps to refresh memories later when litigation arises,
  • provides a record of the claimed protection for use in the privilege log, and
  • serves as a reminder to those in receipt of the communication of the special nature of the document or communication and the care that must be taken to protect it from disclosure.

    Excerpted from Bloomgberg Law, July 22, 2013. To view full article, click here.
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