The interplay between attorney-client privilege and in-house counsel communications has been on many people’s minds since the Middle District of Florida’s decision late last year in US ex rel. Baklid-Kunz v. Halifax Hospital Med. Ctr.  In that case, the court rejected a hospital’s privilege arguments and required production of hundreds of its in-house counsel and compliance officer’s emails to a False Claims Act whistleblower.  However, there are best practices described in Protecting the Attorney-Client Privilege: Learn from Halifax, that can be used to effectively protect the privilege and allow frank discussion of the legal risks every health care entity faces.
These days, the attorney-client privilege is increasingly important to in-house counsel.  As budgets have shrunk, many in-house counsel find themselves handling more issues that may have previously been performed by outside counsel.  And at the same time, increased False Claims Act activity has turned what used to be viewed as routine complaint reviews into potentially high-stakes internal investigations.  The attorney-client privilege provides space for these lawyers to fully and candidly develop and evaluate potential exposures faced by their organizations.
As we learned from the Halifax decision, though, the privilege can be lost though conduct many lawyers and most business people consider routine.  For example, the court held that addressing an email to non-lawyers as well as a lawyer means the email is not privileged because the communication was not primarily made for the purpose of providing legal advice.  Putting a lawyer in the “cc” field of an email to non-lawyers also meant the email was not privileged for the same reason.
Although the Halifax decision may cause concern, the attorney-client privilege can be preserved with the diligent use of best practices by both in-house counsel and their business-side colleagues.  Among these are:
(1) Make the request for legal advice or the giving of legal advice explicit;
(2) Use separate emails to request legal advice, limiting non-lawyer employees on the emails to those who need to know that the request was made;
(3) Clearly state when non-lawyers are acting at the instruction of in-house counsel;
(4) Carefully consider the wording of emails or whether email is the appropriate means to communicate, when statements could be read out of context; and
(5) For particularly sensitive matters, consider retaining outside counsel who benefit from a presumption that communications with them are privileged.