Derivative Attorney-Client Privilege in Organizations

Authors

Douglas R. Richmond, Lockton Companies, LLC

Document Type

Article

Abstract

A lawyer and client must be able to communicate about the client’s legal affairs in confidence for the lawyer to be able to meaningfully advise the client, hence courts’ recognition of the attorney-client privilege. Fundamentally, the very term “attorney-client privilege” seemingly requires a lawyer’s participation in a communication for the privilege to attach. But, in fact, lawyers need not always participate in client communications for the attorney-client privilege to shield the communications from discovery. Clients or their employees’ confidential conversations among themselves with respect to legal matters sometimes deserve privilege protection. This derivative application of the privilege can be crucial where organizations are concerned. As artificial constructs, organizations must communicate with counsel through employees who are empowered to act on their behalf. And whether organizations should seek legal advice or must act on legal advice requires decisions by employees who are entrusted to make them. Often, such decisions or actions require responsible employees to confidentially consult with one another outside the presence of a lawyer for the organization. Recognizing this practical reality, courts generally hold that communications between employees in which a lawyer for the organization is not involved are derivatively protected by the organization’s attorney-client privilege if the communications (1) contain legal advice from a lawyer for the organization or (2) the intent to seek legal advice on the organization’s behalf. This important aspect of the attorney-client privilege is often overlooked or under-appreciated.

Recommended Citation

Douglas R. Richmond, Derivative Attorney-Client Privilege in Organizations, 34 U. MIA Bus. L. Rev. 163 (2026).
Available at: https://repository.law.miami.edu/umblr/vol34/iss2/3