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Using Legal Privileges for Your Company’s Protection

Bay Business Journal
Feb/March 2006

The disclosure of certain business information in litigation or in an adversarial or administrative proceeding could be detrimental to your company. For example, your company conducts an audit to analyze its compliance with IRS rules, or conducts an investigation into allegations of sexual harassment. If these processes reveal information about your company’s possible regulatory noncompliance or exposure to liability for a sexual harassment claim, your company will want to have in place beforehand certain procedures and protocols to shield and safeguard that information. Applying protections designed to use the attorney-client or work-product privileges will maximize the chances of accomplishing this objective.

Attorney-Client Privilege
The attorney-client privilege protects from disclosure communication between an attorney and his or her client, when that communication provides legal advice. The privilege extends to nonmanagement and lower-level employees, as well as to third parties such as hired investigators, consultants, insurance agents, and anyone whose presence is necessary to properly render legal advice to the company. In Wisconsin, communications are subject to the attorney-client privilege if they are between 

  1. the client and its representatives and the lawyer and his or her representatives; 
  2. the lawyer and his or her representatives; 
  3. the client or his or her lawyer and a lawyer representing someone else in a matter with similar interests as the client’s; 
  4. the client and its representatives; or 
  5. lawyers representing the same client.

If in-house counsel is offering legal advice at the time of the communication, in-house counsel is considered an attorney for the purposes of the privilege. Keep in mind, however, that the attorney-client privilege protects communications between attorney and client only. It does not protect the facts contained in those communications if they are unprivileged. In other words, merely sending a copy of an unprivileged communication to an attorney does not invoke the attorney-client privilege.

Work-Product Doctrine
A common misunderstanding of the work-product doctrine is that it only protects from disclosure during the course of litigation the mental impressions, opinions and documents generated by an attorney involved in that litigation. This doctrine, however, is broader. It protects from disclosure documents and communications not only prepared by counsel, but also prepared by employees and third-parties at counsel’s instruction either during the course of litigation, or in anticipation of litigation. However, unlike the attorney-client privilege, the work-product doctrine is not absolute. If an opposing party can demonstrate that the protected information is not available through any other source and would require significant hardship to obtain, courts can allow that information to be disclosed (unless it is an attorney’s mental impressions, opinions, or legal theories).

In Wisconsin, in anticipation of litigation means that a problem or dispute needs to exist with a specific person or entity, and the work requested by counsel must be done in regard to that problem or dispute for the workproduct privilege to apply.

Becoming Privileged
A common situation employers face when deciding whether and how to invoke the protections described above is investigating a charge of harassment. With a little planning and care, the attorney-client privilege and/or work-product doctrine can be applied, allowing your company to argue that the investigation and any documents produced in the course of that investigation are protected by the attorney-client privilege and/or work-product doctrine. Note that if your company defends itself against a harassment claim by contending that it did a proper investigation and promptly remedied the problem, plaintiffs then have the right to delve into the aspects of the investigation, including any advice given to the company by the investigator, even if the investigator is a lawyer. This is a risk that cannot be minimized regardless of whether an outside lawyer, in-house lawyer or non-lawyer conducts the investigation. But for that exception, a company can increase the odds that any discrimination investigation will be protected by following some of these selected tips: 

  • A high-level manager should request legal advice from counsel in writing prior to commencing an investigation. The letter should clearly outline the existence of litigation or the potential for future litigation.
  • The investigator should confirm to management in writing that the investigation will be made for the purpose of providing legal advice to the company.
  • Management should write a memo to each of the employees to be interviewed that states they will be interviewed "for the purpose of providing legal advice to the company" and admonishing the employee to keep the content of any conversation with an investigator confidential. It is all too easy to inadvertently waive the attorney-client privilege. Something as minor as the employee sharing the substance of the interview to a friend could waive the privilege for the entire company.
  • Any outside consultants or experts should be retained at the initial stages of the investigation to be able to include their efforts under the work-product privilege.
  • Avoid verbatim transcripts of interviews. Neither counsel nor those conducting an investigation should write summaries of the interviews unless they include the investigator’s and/or attorney’s opinions regarding the impact of the interview, and/or the interviewee’s credibility. Wherever possible, the investigator should insert mental impressions in all written materials to properly invoke the work-product doctrine.
  • Any and all documents, notes, or communications in any form should be stamped or labeled "attorney-client communication/attorney-work product material."
  • Steps taken to ensure proper application of the attorney-client privilege and work-product doctrine should be in effect until the matter has been fully resolved. Even inadvertent disclosure during a trial could jeopardize the privilege.

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