The attorney-client privilege is designed primarily to protect the communications of the client to the attorney. Regardless of the type of the communications (oral or written) or their form (letter, e-mail or fax) the communications are protected so long as the client communicated with the attorney in confidence and for the purpose of obtaining legal advice or assistance.

As the courts have protected the direct communications of the client, they also have protected the responsive communications from the attorney to the extent that the responses reveal the prior confidential communications of the client. This 'derivative protection' shields from disclosure not only the responsive letters or oral communications from the attorney, but also the attorney's notes of her discussions with the client that reveal what the client had communicated.

Although there is little case law on this issue, this theory of protecting what the client said to the attorney has also resulted in the privilege protection being extended to the client's notes to himself made prior to and in preparation for his face-to-face consultation with the attorney. Clark v. Buffalo Wire Works Co., Inc., 1999 U.S. Dist. LEXIS 17763, *8-9 (W.D. N.Y. Oct. 26, 1999). See generally Paul R. Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES, Sec. 5:16 (West Group 2nd ed. 1999).

Courts have traditionally permitted joint clients (two or more clients represented by the same attorney) and separately-represented clients with a community of interests or who are preparing a joint defense to pool information for the purpose of collectively acquiring legal assistance, see Paul R. Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES, Sec. 4:30-4:38 (West Group 2nd ed. 1999). Thus, pre-consultation communications by individuals within the same corporation (whether oral or written) designed to facilitate preparations for the anticipated consultation should be given the same protection. These client-initiated communications before a consultation should for these purposes be the same as attorney-initiated communications that one employee may have with another at the behest of legal counsel in counsel's effort to collect all facts that are relevant to the legal issue sought. The only difference is that in the attorney-initiated communications the employee collecting the facts is often seen as the agent of the attorney.

This should not be a difference of any substantive consequence. As a matter of practical reality, however, will be significantly more difficult for the client to demonstrate that legal assistance was the predominant purpose of employee-to-employee communications that are not requested by the attorney.

Therefore, when corporate employees are preparing for consultations with either in-house or outside legal counsel, the consultation should be scheduled beforehand. In communications made to prepare for the consultation the employees should explicitly refer to the legal problem being addressed and the consultation that has been scheduled.

As an added note of caution, when legal issues arising out of business matters are the subject of the scheduled consultation with legal counsel, the client should be prepared to identify the non-privileged documents that discuss the same business matters. Courts often suspect that corporations have "funneled" business communications through legal counsel in an effort to immunize them from discovery. If the corporation can demonstrate that it did in fact produce equivalent business communications in response to document requests, the court should be convinced that the communications were not part of a funneling ruse.