Impact | Business Risk Management Blog

As two federal courts recognized in February 2015, Illinois law is unsettled as to the duration of continued employment that is sufficient consideration to support a non-compete agreement. In Bankers Life And Casualty v. Miller¹,a February 2015 federal court decision applying Illinois law, the court held that there is no bright line test for the length of continued employment sufficient to support a post-employment restrictive covenant specifically rejecting the argument that employment less than two years is inherently insufficient consideration under Illinois law. And in Cumulus Radio Corporation v. Olson and Alpha Media, the court recognized that the Illinois Supreme Court would likely embrace the same sort of fact specific approach to assessing the adequacy of consideration that it applies to determine whether the restrictions are reasonable.

The situation where a corporate employee is being interviewed by the attorney representing the corporation raises special attorney-client issues. Such interviews are common place in most internal investigations carried out for the purpose of providing legal advice to a corporation. In Upjohn v. United States, the Supreme Court provided important guidance to all attorneys who find themselves interviewing corporate employees. The purpose of the “Upjohn Warnings”, as they have come to be known, is to make sure that the individual employee being interviewed understands that the attorney-client privilege, as commonly understood, does not apply to their interview with an attorney representing the corporation. Making sure that the employee being interviewed is aware of this fact is a necessity that establishes the ethical character of the attorney’s actions while also preserving the corporation’s legal ability to control and use the statements by the employee in the manner best suited to its legitimate interests.

In-house lawyers owe the same professional obligations with respect to the preservation of privileged communications as outside counsel. However, in-house counsel may confront challenges relating to the application of the attorney-client privilege that differ from those faced by outside counsel. The attorney-client privilege and work product doctrine apply to in-house counsel in the same manner that they apply to outside counsel. To understand the difference in the challenges faced by in-house counsel and outside counsel, one need not look much farther than how the attorney-client relationship giving rise to the privilege is formed. For example, as the resident lawyer, in-house counsel are often confronted with questions prefaced with the phrase “as my lawyer.” But does that title really fit? When is in-house counsel representing the individual as opposed to the entity? How should one draw the line between the provision of legal advice which is potentially privileged and business advice which, while possibly confidential, is not privileged? Understanding the parameters of the attorney-client privilege and the work product doctrine is essential to being able to maintain the trust that forms the basis of the attorney-client relationship and to protect the client. This paper is intended as an overview of some of the issues in-house counsel face relating to the preservation of confidentiality.

For a copy of the entire white paper, "Managing the Attorney-Client Privilege and Work Product Doctrine: Considerations for In-House Counsel," please contact Greensfelder's marketing department at 314-345-5456.