Question: When dealing with sticky employment issues I like to keep a running log of conversations and steps taken. This log includes calls to our attorney and a summary of the advice they gave, as well as conversations with managers, witnesses, employees, etc. The purpose of this ongoing log is to make sure that I can prove we took appropriate action. Do you see any risks to this approach?
Answer: Yes. All advice from your attorney should be kept separate from the rest of your information. Attorney advice is protected by attorney-client privilege, but only if it’s maintained as confidential. By including communications with an attorney alongside information that would need to be disclosed if a lawsuit were filed, you are jeopardizing your ability to assert the attorney-client privilege. In a recent wage and hour class action lawsuit an employer defended itself by stating it was acting on “advice of counsel,” which then opened the door for the opposing party to subpoena all of the communication between the firm and the client on that issue (McGhee v J.E.T Limousines & Transportation LLC, D Ariz, May 2026).
While it’s excellent practice to summarize an investigation or event as you’re working through it, advice received from an attorney should not be included. It’s important to maintain the attorney-client privilege so that you can be transparent with your attorney and not have to worry about information or advice being used against you in the future. For more tips on maintaining the attorney-client privilege, see our previous articles on sharing legal advice here and here.
