When Are In-house Counsel Internal Communications Privileged? Will Inclusion Of Counsel In An Email Chain Protect The Communication-Maybe Not!

When are internal emails truly protected by attorney-client privilege? In this episode of Brach Eichler Talks, litigation attorneys Rose Suriano and Robyn Lym break down the nuances of privilege for in-house counsel communications. They explain when copying your legal team on emails strengthens protection—and when it doesn’t. You'll also learn how to spot privileged versus non-privileged internal correspondence, what courts look at in potential litigation, and the best practices to preserve confidentiality and reduce risk.

Whether you’re general counsel or part of a compliance team, this episode will help clarify how to safeguard your internal communications. For more information, visit https://www.bracheichler.com/insights/when-are-in-house-counsel-internal-communications-privileged-will-inclusion-of-counsel-in-an-email-chain-protect-the-communication-maybe-not/

📞 For questions, contact Rose Suriano at [e-mail] or 973-403-3129, and Robyn K. Lym at [e-mail] or 973-403-3124.

*This is intended to provide general information, not legal advice. Please contact the authors if you need specific legal advice.

Episode Transcript

(00:00):
Thank you for tuning in to the Brach Eichler Talks podcast,

(00:06):
where we explore and discuss today's trending legal topics.
In this episode, we'll discuss a recent litigation law alert from Brach Eichler titled, "When
are in house counsel internal communications privileged?
Will inclusion of counsel in an email chain protect the communication - Maybe not." So you think
that including your general counsel or assistant in house

(00:29):
counsel in your email communications will protect the communication?
Maybe not. Internal communications are not always shielded by privilege simply because your in
house counsel is copied on the email communication… When is an internal communication privileged?
An internal communication is privileged if it is a communication made between the attorney and

(00:51):
client in confidence for the purpose of obtaining or providing legal advice… When evaluating
privilege, you must first consider the purpose of the communication.
For example, when a general counsel requests documents or gathers facts internally to assess a
litigation…or sends communications regarding legal strategy
, such communications are privileged and must remain confidential.

(01:15):
Keeping in house counsel on the email chain will be critical to protecting that communication.
Similarly, when you are seeking legal advice regarding a company practice or policy or how it
may impact an employee, such communications are also subject to privilege… What about work
product and internal summaries if litigation is expected or anticipated… Documents and

(01:39):
communications that a party or party's representative prepares in anticipation
of litigation are protected work product.
But is the document or communication prepared or made in anticipation of litigation?
Whether a document is protected work product requires a fact sensitive analysis as to whether
litigation was anticipated or contemplated when documents were prepared, whether there is a

(02:02):
substantial need for the documents in discovery, and whether the requesting party cannot obtain
the materials through other means without suffering undue hardship… The court may also conduct
an evidentiary hearing to address these factors.
Paladino v. Auletto Enterprises Inc, 459 NJ Super.

(02:23):
365, 376 (App. Div.
2019) (remanding for evidentiary hearing as to whether statements and photographs were work
product)… When is an internal communication not protected?
An internal communication made in the ordinary course of business is not protected simply because an attorney is copied.
For example, if general counsel is copied on an internal discussion regarding an operational or

(02:49):
financial issue that does not require legal analysis or does not seek legal advice, it is not
privileged as it is part of the ordinary course of the company's business… It is also important
not to include a third party to the email communication even where counsel is included.
If an employee discloses the protected communications to a third party or a third party is

(03:11):
present during communications with in house counsel, there is a risk
that the attorney client privilege may be waived.
If confidential or protected communications are widely disseminated within
an organization, the privilege may be waived as well.
If an employee has internal communications and later becomes adverse to the
corporation, the communications could be discoverable.

(03:35):
Remember that waiver of attorney client privilege may result in subject matter waiver.
This requires the disclosure of other related privileged communications regarding the same subject matter.
How can a company protect an internal communication from disclosure?
To preserve attorney client privilege, consider carefully the purpose of your email and who is copied.

(03:56):
Consider implementing the following best practices.
Do not reply all without knowing who is on the email chain and review the entire email chain
… Do limit the distribution of privileged materials slash communications to individuals who are
necessary to advance the legal purpose of the communication.
Do use privileged designations on emails, such as attorney client privileged communication in

(04:21):
the subject line, and do not forward legal advice.
Limiting privileged communications, avoiding the widespread dissemination of confidential or
protected information, and carefully considering the content of emails are all part of a
company's best practices for limiting the disclosure of privileged communications and documents

(04:42):
and to prevent the waiver of attorney client privilege, particularly in
cases where litigation is pending or anticipated.
If you have any questions about this alert, please contact Rose Suriano, Esquire, Member,
Litigation Practice at [e-mail], or 973-403-3129, or Robin K.

(05:02):
Lym, Esquire, Associate, Litigation Practice at [e-mail] or 973-403-3124.
This is intended to provide general information, not legal advice.
Please contact the authors if you need specific legal advice.
Brach Eichler LLC is a full service law firm based in Roseland, New Jersey with over 80 attorneys.

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