The Pennsylvania Supreme Court recently issued a decision that highlights just how vigilant corporations must be to ensure their communications with outside counsel are protected by the attorney-client privilege.
In Bousamra v. Excela Health, the Court ruled that a company’s in-house counsel waived the attorney-client privilege that protected communications with outside counsel, simply by forwarding emails from its outside counsel to an outside public relations firm. The company had hired the outside counsel and the public relations firm to address the same matter, and its in-house counsel forwarded emails from outside counsel about that matter to the public relations firm.
This set of facts, though not highly unusual in the real world, led to years of litigation on the waiver issue. The Pennsylvania Supreme Court concluded that by hitting send on outside counsel’s emails and sending them to a third party whose involvement was not “indispensable” to outside counsel’s legal work, in-house counsel had waived the company’s attorney-client privilege. The scope of that waiver will likely be the subject of further litigation.
It is easy nowadays to share communications, especially emails, on the same topic with the team working on an issue affecting the company, including when legal counsel and outside consultants are part of that team. When those communications involve advice from legal counsel, however, companies need to be vigilant to avoid waiving privilege. Among other things, companies should re-evaluate their policies on how to handle communications with outside counsel, and (re)train employees on that issue so they understand how the policies work on a day-to-day basis.
This post was written by Justin Barron