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.

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USA Ethics Association February 2020 Vol.13, No. 50, Winter 2020

James McCauley

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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” to members of the bar and bench on matters involving legal ethics, lawyer advertising and the unauthorized practice of law. Mr. McCauley frequently lectures and publishes on matters relating to legal ethics and the unauthorized practice of law. He taught Professional Responsibility at the T.C. Williams School of Law in Richmond, Virginia for 15 years, and served on the American Bar Association’s Standing Committee on Legal Ethics and Professionalism from 2008-2011. Mr. McCauley graduated cum laude from James Madison University in 1978, received his law degree from the T.C. Williams School of Law, University of Richmond, in 1982 and was on the University of Richmond Law Review. Mr. McCauley served on the faculty of the Virginia State Bar’s Mandatory Professionalism Course from 2004-2010. He is also a Fellow of the Virginia Law and the American Bar Foundations. Mr. McCauley is a member of the John Marshall Inn of Court in Richmond, Virginia. In 2018, he was chosen as Leader of the Year by the 2018 Class of Leaders in the Law sponsored by the Virginia Lawyers Weekly.

Virginia State Bar

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The Virginia State Bar is a state agency that protects the public by educating and assisting lawyers to practice ethically and competently, and by disciplining those who violate the Supreme Court's Rules of Professional Conduct, all at no cost to Virginia taxpayers.

USA Ethics Association February 2020 Vol.13, No. 50, Winter 2020

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