Public Health Law Map - Beta 5 - Medical and Public Health Law Site

ibes were in the form of consulting fees pursuant to contractual agreements drawn
up by counsel. The allegation was that the attorneys knew that these deals were
illegal. This would mean that there would be no privilege between the accused
attorneys and their clients.
Most questions about attorney independence involve in-house counsel. If the attorney
is found to be acting as an administrator, rather than an attorney, there will be no
privilege. The first step to preserving privilege for in-house attorneys is to ensure that
they are licensed in the jurisdiction where they are giving advice. While there are
circumstances were privilege might attach when the attorney is not properly licensed
and not under the close supervision of a licensed attorney, these are unusual and
would not apply to an in- house counsel who was not closely supervised as part of a
legal department.
The possession of a license is not enough, however; the attorney also must be free to
exercise independent legal judgment. The free exercise of independent judgment is a
distinguishing characteristic of a professional. Whether it is certifying a bridge as
sound, diagnosing an illness, or giving a legal opinion, only the person holding the
appropriate license can legally make the professional decision. A corporation cannot
hold a professional license; neither can an unlicensed individual practice a profession
by employing a license holder to ratify the layman’s decisions. These strictures apply
equally to physicians and attorneys, although the nature of professional judgment is
easier to define for physicians. Since hospitals constantly deal with the issue of
independent judgment with regard to physicians’ services, this situation will be used
to illustrate the principle of free judgment.
The medical situation that is closest to the role of in-house counsel is that of a
company physician. Despite the often-held belief that physicians cannot be employed
by nonphysicians, most large corporations employ physicians to treat employment-
related illnesses and manage employee health programs. The physician is employed
to provide services as defined by the employer. The employer may tell the physician
how many hours to spend seeing patients, or not to see patients at all. These are
administrative decisions. The employer cannot tell the physician how to treat the
patients that the physician does see. When seeing patients, the physician is exercising
medical judgment, an area that the employer cannot infringe upon. In the same way,
an attorney cannot let a nonattorney client dictate his or her decision making. To do
so would be legal malpractice, and would forfeit privilege.
To preserve this independence, the head of a legal department, or, if there is just one
in-house attorney, that attorney, must report to the CEO or to the board, rather than
to a lower-level administrator. The attorney must be acting as an attorney, not just as
an administrator with a law license.
2. Attorney–Client Privilege
The attorney–client privilege is the strongest legal privilege. It is limited to
communications between attorney and client made as part of the attorney–client
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