Saying “a lawyer made me do it” can destroy attorney-client privilege
Harassment & Discrimination
Question: As an HR manager, I’m concerned about sharing legal advice that I receive on behalf of the company. What are the rules around this?
Answer: All parties to an attorney-client communication made for the purpose of providing or obtaining legal advice must take steps to protect confidentiality. If you or someone else at the company waives attorney-client privilege, intentionally or not, a third party may be entitled to know the details of your communications with the company’s attorney, including the content of notes and emails. In a recent employment discrimination case, an HR representative unintentionally waived attorney-client privilege as to conversations he had with in-house counsel. The case involved two terminated employees who filed an internal harassment complaint and were later terminated for alleged violation of a banking regulation. The employees then sued for discrimination and retaliation. In a deposition, the employees’ attorney asked the HR representative about discussions leading up to the company’s decision to fire them. The HR representative said that he had discussed the prior harassment complaint with legal counsel and relied on the attorney’s advice to resolve the complaint. The court found that the HR representative inadvertently waived attorney-client privilege when he disclosed that the company relied on in-house counsel’s legal advice in making decisions about the harassment complaint. Since the employees were claiming they were terminated because of their harassment complaint, the in-house counsel’s statements were now an issue in the case, and subject to disclosure. (Barbini v. First Niagara Bank, N.A., SD NY, April 2019).
The ground rule is to keep any conversation you have with an attorney as private as possible. Legal advice (“The lawyer told me…”) should only be shared with top-level members of management who need the information in order to perform their jobs or make decisions. To prevent a dispute about confidentiality, it is best to avoid any mention that an attorney was consulted in connection with any company action. For example, don’t tell employees that you are taking a certain action “because the lawyer told us to do it.” Instead, simply assert that the company decided to change the policy or make an employment decision. And for heaven’s sake, don’t share the attorney’s advice with your friends and family! Please don’t hesitate to ask your Vigilant employment attorney for guidance on how to protect the company’s attorney-client privilege.