Communications with in-house counsel are privileged on the same terms as with outside counsel, but the analysis is complicated by the dual role most in-house lawyers occupy.
Legal advice, not business advice. Where a lawyer provides commercial input, the communication is not privileged. Where the communication has both purposes, courts ask whether the primary or, in some formulations, a significant purpose was legal advice.
Who is the client. The organisation, not the individual employees. Communications with employees are privileged where they concern matters within the scope of the employee’s duties, at the direction of superiors, for the purpose of securing legal advice, and the employee is aware of that purpose.
Practical measures. Label legal advice clearly and do not label everything that way, because indiscriminate marking undermines genuine claims. Keep legal advice in separate communications from business direction. Have legal requests directed to counsel explicitly. Avoid copying counsel merely to create a privilege claim, which courts recognise readily.
Foreign jurisdictions. Several do not recognise privilege for in-house counsel at all, particularly in competition investigations, and material held in those jurisdictions may be seized.
Board materials. Legal advice to a board should be provided in a separate document or a clearly delineated section, so that the whole board pack does not have to be produced or withheld together.