By Janelle M. Lewis, Attorney and Business Strategist

This is a Strategic Framework for In-House Counsel, General Counsel, and Product Counsel to Use When Strategically Thinking about Communicating as a Strategic Partner.

Framework’s Objective

The Framework’s objective is to guide the internal legal team on strategic communication by considering Attorney-Client Privilege when acting as a strategic partner.

Quick Return to Basics: Attorney-Client Privilege & Internal Legal Counsel

First things first, Attorney-Client Privilege applies to In-House Counsel, General Counsel, and Product Counsel. The In-House Counsel, General Counsel and Product Counsel have the duty to protect the Attorney-Client Privilege.

How Should the Legal In-house Team Communicate with Other Internal Stakeholders as a Strategic Partner, While Maintaining Privilege? Here is the framework

It comes down to how privilege is applied to an organizations communications with its in-house legal counsel.

The question is what is the predominant purpose of the communication? Is it to provide business advice or legal advice. The purpose of this framework is to understand and come up with an assessment of how to classify the advice is being desired or given. To assist in the classification of the advice in question, assess the objective of the communication from both the client and lawyer’s perspective.

The purpose of this framework is to understand and come up with an assessment of how to classify the advice is being desired or given.

From the client’s perspective, was the need or the objective of the advice desired, a communication that was for predominately business or  legal in nature? From the lawyer’s perspective, was the communication advice that could only be legitimately given by a lawyer, even if they are acting as a strategic partner?

The two can be included in one communication, but then the question becomes: was the communication predominately business or predominately legal in nature. Highlighting or in-depth discussions on non-legal risks, such as expenses, politics, insurance, competition, and branding; or report and analyze a non-legal matter and the communication can be considered legal advice if the purpose of the communication was to provide legal advice. Business communication written by a lawyer in and of itself does not make the communication legal advice. A business meeting led by a lawyer does not in and of itself make the communication the lawyer provides in that meeting legal advice.

When business advice and legal advice are intertwined into one communication, it has to be determined whether business advice or legal advice predominated the communication. This is help to classify whether the “intertwined” communication is overall business advice or legal advice. If the legal advice in a communication is incidental to the business advice, the overall communication could be considered business advice. If the legal advice is central to the business advice, the overall communication could be considered legal advice.

The question is what is the predominant purpose of the communication? Is it to provide business advice or legal advice.

Why does it matter if a communication is considered business advice or legal advice?

This discussion is important because legal advice is privileged and is therefore protected communication from discovery. Business advice, on the other hand, is not privileged and therefore is not protected communication, and thus discoverable.

Therefore, when an in-house counsel, General Counsel, or Product counsel is acting as a strategic partner, they have to strategically think about how they communicate. Specifically, what communication would they like considered privilege and protected under the law, and what communication can be considered predominately business advice.

For more information on strategizing during times of uncertainty of both legal and non-legal factors, check out this article on “Legal Based Scenario Planning & 2023: Strategizing in Uncertainty.”

Below is a video for more information on A Legal Framework Guiding Strategic Communication for In-House Counsel, General Counsel, and Product Counsel When Acting as a Strategic Partner.

…when an in-house counsel, General Counsel, or Product counsel is acting as a strategic partner, they have to strategically think about how they communicate