Most people understand the attorney-client privilege is a rule that protects the confidentiality of communications between lawyers and clients. This rule encourages transparency and allows an attorney to provide effective representation. But, not everyone understands that there are limitations and that the rule may be applied differently depending on a specific situation.
The attorney-client privilege rule can be especially complex in the world of human resources. There are some common misconceptions among employers. The following can help clear up some of the confusion.
Myth – Since the head of our HR department happens to be an attorney, any of her notes from internal investigations will be protected.
Reality – Not exactly. Employers sometimes believe that having an attorney as the head of their HR department will protect their internal investigations from being disclosed. However, the privilege only applies to confidential communications between attorneys and their clients made for the specific purpose of obtaining or providing legal advice. This rule can not be applied to documents that were created in order to comply with a company’s policy or procedure. So, there is a chance that internal documents prepared by the HR department may be disclosed during litigation procedures.
Myth – My company has taken the appropriate steps to ensure that HR issues within the company will not become public knowledge.
Reality –Probably not. While thorough planning is essential and can certainly help limit your company’s liability, it still can’t guarantee that any documents created during an internal investigation will remain private. You’ll want to keep that in mind while creating all communications. Information from interviews that took place during a discrimination or harassment investigation could very well be considered ‘discoverable’ should there be a subsequent lawsuit.
Myth – Since my company has invested in knowledgeable and experienced HR professionals, hiring an outside attorney is unnecessary.
Reality – The best way to protect against legal claims is to hire a lawyer. Employers should keep in mind that discrimination and harassment suits are on the rise. But, when you hire an attorney for the specific purpose of providing legal counsel surrounding HR concerns, then all those communications between your company and lawyer would not be allowed to be disclosed.
The relationship between an employee and employer is heavily regulated and often difficult to navigate. Employment attorneys can help make sure you are in compliance with state and federal laws and often stop matters from escalating. To learn more about how an attorney can help protect your company’s best interest, visit https://epiphanylaw.com/contact-us/
About the Author
Sarah M. Coenen is an experienced business attorney with Epiphany Law. She focuses her practice on employment services including: non-competition agreements, employee handbooks, hiring and termination. Sarah enjoys educating and empowering her clients to help them achieve their personal and business goals.