Checklist for In-house Counsel, Strategies to Protect Solicitor-Client Privilege

Best practices

Be clear when you are acting as legal counsel and not in another capacity, such as managing operations, conducting investigations, etc. Communicate your role to personnel involved to limit any misunderstandings concerning the applicability of privilege.
Identify that you are acting in your legal counsel role as soon as you receive an assignment or request for action on a matter.
Note your role on documents, when possible.
Use different letterhead, an explicit e-mail signature line, etc. when you are acting as legal counsel.
Use outside counsel if you have concerns about keeping roles separate in a specific situation.

Develop organizational systems (internal procedures) that maintain clear distinctions between operational functions and the legal department, with the legal department having responsibility for all matters that have a legal implication.
Require communications to counsel to be in writing especially when it is a request for legal advice on a specific issue.
Consider putting in place a referral process with requests for legal advice always made through the same point of contact.
Make sure people with legal training who have operational responsibilities avoid giving legal advice at any time. Legal opinions should come from legal counsel in the legal department.
Set up a system to communicate, regularly and frequently, the importance of clearly marking files as "confidential", "privileged", etc. and keeping those files separate from management, operational, and other non-legal files.

Reply to a request for legal advice noting the legal advice requested, asking for any information you require, setting out the steps that you are likely to follow to provide legal advice, and explaining the steps for the client to follow to protect privilege.
Mark documents with the appropriate notations such as "privileged", "confidential", or "prepared at the request of legal counsel for the purpose of providing legal advice".
Ensure communications demonstrate the use and application of legal skill and provide advice.
Identify that the purpose of the communication is with respect to legal advice. When requesting information from others, especially employees, be sure to state that the information is needed so that you can provide the corporation with legal advice.

Have everyone in the organization, including you, separate legal files from other files especially those of a management, operational, or non-legal nature.
Store legal files securely (locked cabinet, password-required, encrypted, etc.) and limit access to them.
Make sure legal files include only those documents that are relevant to the legal issue and show that counsel has exercised legal knowledge and skill.

Advise appropriate personnel of the possibility that privilege may not in place to avoid their assuming that communications with you are protected when:
- you have concerns with respect to the necessary separation between your legal duties and your other organizational functions, or
- your instructions on strategies to protect privilege have not been followed or are impractical to put in place in a particular situation.

Keep all documents confidential that are received from counsel or sent to counsel whether external or internal. Restrict their circulation.
Limit communications with third parties. Be extra cautious with documents going to people who may not be reasonably characterized as an employee or agent of legal counsel or the organization.
Use non-disclosure agreements with third parties and agents and include a non-waiver of privilege clause.
Review regulatory filing requirements to identify when filings may be on a confidential basis. File on a confidential basis whenever possible.
Assert privilege clearly and as early as practicable, where possible.
With respect to litigation or potential litigation:
- Exercise great caution before introducing organizational knowledge or understanding of the law ("state of mind") into pleadings. This may create an implied waiver.
- Ensure witnesses understand the implications of referring to a privileged document in their testimony at discovery, hearings, court, etc.
In search and seizure circumstances, assert privilege at the very outset and require the items to be sealed pending a determination of the claim of privilege.

Keep communications and documents that you feel you may need to impress with privilege restricted by:
- Locking or securing them so that access is restricted.
- Limiting access only to people who truly need access to them.
- Noting on the documents and elsewhere that the material is not to be copied, circulated, or disclosed.
Protect the organization from the unauthorized or inadvertent communication of documents to third parties, especially by e-mail or other similar technologies. Consider password protection, secure transmissions systems, encryption, verification of recipient address information, use of audit trails, etc.

State, on the face of the documents, the purpose of information gathering, including interviews, when it is being done for the purpose of preparing for litigation. Use a number of means to indicate this, (an introductory paragraph, for example) not just a rubber stamp.
Separate information gathered by subject matter and label the files appropriately, including noting that the material is for the purpose of preparing for litigation.
Differentiate between ordinary internal reports and investigative reports completed for (possible) litigation.
Avoid including in investigative reports being prepared for (possible) litigation information that may have been obtained for other organizational purposes.
Consider using outside legal counsel for investigations. Privilege seems to be less vigorously attacked due to the presumption that they are truly acting in a professional capacity.

* This checklist is based on material prepared by Robert Patzelt, Q.C., "Solicitor & Client Privilege, A brief perspective from in-house counsel," April 2011.