‘Full and frank’: effectively leveraging the attorney-client privilege

HR professionals routinely use legal counsel to obtain advice on compliance issues, risk mitigation, and many other legal issues. Whether it arises in the context of a one-off accommodation question or a months-long harassment investigation, the attorney-client privilege is a vital tool for protecting confidential communications between legal counsel and HR professionals. The attorney-client privilege allows HR professionals to disclose and discuss sensitive information and troubling facts with the company’s counsel without concern that the communication may one day be seen and scrutinized by a judge, jury, or the public. But don’t assume that any conversation with a lawyer in the room, or copied on an email, will be privileged and protected from disclosure. To effectively leverage the benefits of the attorney-client privilege, HR professionals need to understand what it is and how to use it.

Defining attorney-client privilege

The attorney-client privilege is a doctrine that protects certain written and verbal communications between an attorney and a client from being revealed to third-parties. As the U.S. Supreme Court famously said, the attorney-client privilege exists to “encourage full and frank communication . . . and thereby promote broader public interests in the observance of law and administration of justice.” In simpler terms, the attorney-client privilege allows clients to share the bad stuff without holding back, get legal advice, and not worry about whether their communications will be revealed to others.

For a communication to be privileged: