In Part V of this series I offer the last of my guiding observations as you consider consultations with legal counsel:
4. In some circumstances here in the U.S. you may be better off consulting a lawyer in outside, independent, private practice rather than in-house counsel — because of the way that U.S. courts respond to those two types of attorneys in their application of the attorney-client privilege.
Case study: In Bhandari v. Artesia General Hospital, et al., the State of New Mexico’s Court of Appeals applied to communications with in-house counsel a tougher standard than it applied outside, private, and independent attorneys.
In determining whether or not the attorney-client privilege applied to advice from an in-house lawyer that court asked if the attorney involved was giving pure legal advice versus business advice:
“Application of the [attorney-client] privilege can be difficult when the client is a corporation seeking legal advice regarding a business transaction and when the client’s attorney is in-house counsel who wears ‘two hats’ by performing a dual role of legal advisor and business advisor.”