Advice With Consent

By: Bryan K. Prosek

Be clear with employees seeking legal help: In-house counsel represents the association.

Consider this scenario: An employee of your association has a legal problem and goes to your in-house counsel for advice. What should the attorney do?

The general rule is that the attorney-client privilege belongs to the organization, not to individual employees. However, when in-house counsel addresses a legal matter with an employee, an attorney-client relationship between them can be created, making their communications subject to the privilege.

When in-house counsel inadvertently becomes the representative of both the association and an employee, several practical problems can arise. For example:

  • The attorney might need to convey information to management that the employee thought was confidential when he or she disclosed it.
  • Management might pursue a certain strategy that the employee believes is inconsistent with his or her personal interests.
  • Management and the employee might disagree on whether privilege should be asserted or waived.
  • Because the attorney's primary loyalty is to the association, he or she might not suggest strategies that could benefit the employee but harm the association.

Clearly, this situation creates an ethical conflict of interest, which may require the lawyer to withdraw from both representations. To avoid this minefield, it is useful for in-house counsel to prepare a standard warning and review it with any employee who wants to discuss a legal matter.

The warning should be either in writing and signed by the employee, acknowledging that he or she understands it, or should be given with a witness present. These are some statements that might be included:

  • The purpose of the interview is to assist counsel in providing legal advice to the association. (State the specific purpose—for example, to help respond to pending litigation.)
  • Counsel represents the association, not the individual employee.
  • Discussions between the employee and counsel are privileged communications, and the privilege belongs to the association, not the employee.
  • Counsel may disclose to management the substance of the interview.
  • The employee should not discuss the interview with anyone, including fellow employees.

If circumstances warrant it, consider having outside counsel conduct the interview to ensure that all parties are protected.

Bryan K. Prosek is an attorney with Steptoe & Johnson PLLC. Email: [email protected]