Attorney-client Privilege: Common Pitfalls

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The attorney-client privilege protects confidential communications between an organization and its attorney if those communications were made for the purpose of obtaining or providing legal advice. Organizations rely on this protection when handling legal matters ranging from investigations to everyday employment matters. But there are several ways that the attorney-client privilege can be lost. Below are suggestions for how to effectively communicate with your counsel in a manner that will help preserve the attorney-client privilege.

  • Limit distribution. Make sure that any communications seeking legal advice are only sent to your in-house or external counsel and not to any third parties. If you include a third party or forward the email chain to them, you may be deemed to have waived the privilege for that communication and potentially others on the same topic. Do not record or create AI notes of your communications with counsel without their knowledge and take steps to ensure that such records are not forwarded, shared, or stored in a place that is accessible to employees or outsiders.
  • The privilege only applies to communications related to legal advice. Do not assume that just because you copy your attorney on a communication it will be deemed privileged. For privilege to apply, the communication, and any attachment to the communication, needs to relate to legal advice. For example, if a manager emails human resources to report misconduct by an employee, the fact that counsel was cc’d does not necessarily mean that the email would be considered privileged.
  • Do not copy counsel on non-legal matters. Conversely, if you want to create a business record about an employee’s conduct and want to be able to rely on that document as evidence, you should not cc or bcc your lawyer. Instead, forward a copy to them. If the lawyer is cc’d or bcc’d, and you then try to use that document as evidence, you may be deemed to have waived the privilege with respect to other communications with counsel on the same topic.
  • Don’t make your lawyer a witness if you don’t have to. Under the ethical rules, a lawyer may not act as an advocate at a trial in which the lawyer is likely to be a necessary witness, except under very limited circumstances. If you deliberately make your lawyer a witness by cc’ing or bcc’ing them on an important business communication (and note that bcc’s are discoverable), and there is a trial about that matter, you may need to get a new lawyer.
  • Seek legal advice on drafts of important business records. Consider affirmatively seeking legal advice with respect to drafts of internal investigations, termination letters, reasonable accommodation paperwork, or other documents that might become evidence in an employment law claim. If you do not seek counsel’s input in the drafting process, and the draft does not on its face involve legal advice, those drafts could come into evidence.
  • Avoid the phrase “on advice of counsel.” If you tell an employee or outside party that you are deciding something based “on advice of counsel” or say things like “my lawyer says that what we did is lawful” that may put the advice at issue, and it may be deemed a waiver of the attorney client privilege. Such waiver could potentially apply not only to the communication at issue but to other communications with counsel on that same subject.
  • Internal communications about legal matters may not be privileged. Consultation with an attorney about a legal matter does not magically cloak all future communications related to the same subject with the attorney-client privilege. If you reach out to your attorney for advice about an employment or business matter, and then discuss that matter internally thereafter, without involving counsel, the later communications may not be privileged. For the privilege to apply, the later communication would have to be made in confidence and reveal legal advice from, or the intent to request legal advice from, an attorney.
  • Be careful when conducting investigations. Because internal investigations are a routine part of human resources management, the application of the attorney client privilege can be tricky. Employers have a legal duty in some circumstances to conduct an investigation. If the investigation is conducted by an attorney and the documents are designated as privileged, you could not use them as evidence of your compliance with that legal duty without waiving the privilege – and if you waive it with respect to the final investigation report, you could be deemed to have waived it with respect to drafts, interview notes, or other sensitive materials. In cases where you do want all aspects of an investigation to be privileged, consider engaging the investigator through your counsel.

For an organization to function properly, it needs to be able to obtain legal advice from its counsel in confidence. By keeping the above tips in mind, you can help prevent the unwanted disclosure of sensitive and confidential communications with counsel.

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Source(s):

Gasson, E. (2025, June 30). Attorney-client Privilege: Common Pitfalls | Hirsch Roberts Weinstein LLP USCIS Releases New Form I-9. Hirsch Roberts Weinstein LLP. https://www.hrwlawyers.com/news-and-events/client-alerts/attorney-client-privilege-common-pitfalls/?utm_source=elinfonet

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