Attorney-Client Privilege and the Ethical Duty of Confidentiality for In-house Counsel under US Law

James McCauley, Ethics Counsel, Virginia State Bar, USA

This article discusses the corporate attorney-client privilege as applied in the United States. As in the United States, other common law countries apply the privilege to in-house counsel. The attorney-client privilege is compared to the ethical duty of confidentiality as expressed in the rules of professional conduct adopted in every US jurisdiction. Protection of attorney work product is also discussed. A very brief caveat is necessary to explain that the Legal Professional Privilege (LPP) under EU law is reserved to outside counsel and not automatically applied to protect communications between lawyers serving as in-house counsel and their employer’s management, as in-house counsel under EU law are not considered sufficiently independent.

James M. McCauley is the Ethics Counsel for the Virginia State Bar where he has been employed since 1989. His department writes the draft advisory legal ethics opinions, propose amendments to the Virginia Rules of Professional Conduct and provide informal advice via the ’ethics hotline