THE ROLE OF THE ATTORNEY IN DOCUMENT PROTECTION

There are two legal protections for information: the attorney-client privilege and the attorney workproduct doctrine. Before discussing the technical requirements of these doctrines, it is necessary to review the professional role of an attorney. Except for certain specific statutory restrictions on document access, it is impossible to protect documents without the involvement of an attorney. The attorney must be properly admitted to practice in the jurisdiction where the facility is located.

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 stricture 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 non-physicians, all 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.

This has been the subject of litigation in cases where employees have sued company physicians who have allowed the employer to dictate their professional decisions. These cases have arisen in situations where employers have instructed company physicians not to inform employees about employment-related illnesses. The courts have held that this violates the professional license requirements, and they have allowed the employees to recover against the physicians for malpractice. In allowing these recoveries, the courts have stated that a licensed professional cannot use company policies as a defense against lawsuits based upon professional negligence.

A professional who allows a layman to influence the professional's judgment will be acting contrary to the dictates of the professional's license. In the legal context, this means that an attorney who allowed a layman to direct the professional's actions would not be acting as an attorney. While this could result in personal liability for malpractice, it is not a serious threat for in-house attorneys. The real problem is that the attorney's work and confidences could lose their legal protection. This protection can also be lost if the attorney acts as an administrator. In our medical example, assume that the company physician also acted as a personnel administrator. In states with a physician-patient privilege, the physician's records would be protected when the physician was exercising medical judgment, but not when acting as an employment counselor. The legal problem would be in separating the roles.

The usual legal solution here is to disallow the legal protection of documents if privileged information is mixed with unprivileged information. This conservative attitude stems from the underpinnings of legal privilege. Privilege is a statutory doctrine intended to encourage people to utilize legal counsel in the hope that this will increase compliance of the laws. (This applies only to civil law; privilege in criminal law is based on constitutional mandates.) While the full extent of legal privilege is uncertain, a recent U.S. Supreme Court decision (Upjohn Co. v. United States, 449 U.S. 383 (1981)) has established guidelines for legal privilege in the corporations.