Split Communications to Ensure Privilege After SCOTUS Nixes Ruling

Andrew Turnbull spoke to Legal Dive about attorney-client privilege for in-house counsel weighing in on mixed-context discussions.

According to Andrew, given the ambiguity with some circuit courts applying a primary-purpose test and others applying what amounts to a significant purpose test, a best practice for in-house counsel wanting to protect privilege is to assume the communication must meet the primary purpose.

“That is the most prudent, safest approach,” Andrew said.

That can be straight-forward if your organization is conducting an internal investigation or audit by requiring at the start that all communications be conducted in a channel set up by in-house counsel.

“You can put that in your [channel] that this is for the purpose of providing legal advice,” Andrew added.

Read the full article.