SPRING 202 0 TODAY’S GENER AL COUNSEL
PRIVILEGE PLACE
Whistleblowing to In-House Counsel By Todd Presnell
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ust like human resource managers, ombudsmen and compliance officers, in-house lawyers often find themselves the go-to corporate representative for whistleblower employee complaints. But unlike their non-lawyer counterparts, an employee’s whistleblowing discussions with in-house counsel raises several thorny privilege issues. For instance, one should question whether the attorney–client privilege applies to the conversation. Other questions raise a lawyer’s anxiety level. What should the in-house lawyer do if the employee announces that she has an attorney, and ups the stakes by requesting her lawyer’s presence? How does one handle the ensuing complaint asserting a retaliation claim that contains the inhouse lawyer’s comments? And just to make it interesting, what if the whistleblower is another in-house lawyer? The in-house lawyer listening to a whistleblower employee must determine in the first instance whether the corporate attorney–client privilege protects the conversation from future discovery attempts. The privilege protects communications that are confidential when made, intended to remain confidential thereafter, and made for purposes of
Todd Presnell is a trial lawyer in Bradley’s Nashville office. He is the creator and author of the legal blog Presnell on Privileges, presnellonprivileges.com, and provides internal investigation and privilege consulting services to in-house legal departments. tpresnell@bradley.com
the lawyer rendering legal advice to the corporate client. Courts generally presume that a corporate employee’s communications with the company’s outside counsel are for legal advice purposes. But because courts understand that in-house lawyers often provide both business and legal advice, they do not apply the same legal advice presumption to in-house counsel. When a whistleblower enters the in-house lawyer’s office, the threshold question is whether the employee is communicating so that the lawyer can provide legal advice to the company management or the employee (in a nonpersonal capacity). This is often difficult. On the one hand, the in-house lawyer must address the employee’s complaint through an investigative or reporting process, which sounds more like a business process than a legal one. On the other hand, the conversation could certainly lead to the lawyer’s providing legal advice to her client. Or both. The privilege issue likely will not ripen until the whistleblower employee files
a lawsuit, such as one for retaliation if the company terminates the employee post-whistleblowing. And if the employee made her complaints to the in-house lawyer, she could regurgitate that putatively privileged conversation in the body of the complaint. One court recently addressed this issue and provided some guidance. In that case, a human resources manager visited her employer’s in-house lawyer to complain about alleged wage and hour violations. She also asked the lawyer for her interpretations of related corporate policies. The next day, she was fired. In her subsequent retaliation complaint, the now-former employee repeated her conversation with the in-house lawyer, including that her supervisor violated state law and failed to follow employer policies. Other allegations included that she asked for “clarity” of certain policies and the in-house lawyer’s response. Even if the employee’s discussion with the in-house lawyer triggered her next day firing, the employer faced a dilemma: Did the
