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Case law: In-house lawyer's emails to another employee to gather information for external lawyers not covered by lawyer-client privilege

In-house lawyers should be very careful when communicating internally with other employees about legal issues which could result in legal proceedings, as their communications may not be confidential under the lawyer-client privilege rules, a recent ruling highlights.

December 2018

This update was published in Legal Alert - December 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An in-house lawyer sent an internal email to another employee asking for information to be sent to an external law firm, and the employee responded. The employee in question had authority to instruct external lawyers as part of his job. The issue arose as to whether these emails could be kept confidential in subsequent court proceedings on grounds they were privileged as lawyer-client communications.

The High Court ruled that they were not privileged because it had not been proved they were sent for the purpose of the in-house lawyer advising the employee. Rather, they were part of an information-gathering exercise for the in-house lawyer to get advice from the external law firm.

It was irrelevant that the employee had authority to instruct outside lawyers, because that was not what they had been doing in this case.

Operative date

  • Now

Recommendation

  • In-house lawyers should be very careful when communicating internally with other employees about legal issues which could result in legal proceedings, as their communications may not be confidential under the lawyer-client privilege rules

Case ref: Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) v Sandoz Ltd [2018] EWHC 2747

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