When a company’s lawyer sends an internal memo marked “Privileged and Confidential,” executives often breathe a sigh of relief, assuming those words act as a legal force field against regulators and opposing counsel. That assumption has cost corporations millions of dollars and, in some cases, their court cases. Attorney-client privilege is real, it is powerful, and it is also far more fragile than most people realize.
What the Privilege Actually Protects
At its core, attorney-client privilege shields confidential communications between a client and their attorney made for the purpose of seeking or providing legal advice. The rule is rooted in centuries of common law and has been codified across U.S. jurisdictions. The logic is straightforward: people should be able to speak candidly with their lawyers without fear that those conversations will later be used against them.
For the privilege to apply, several conditions must be met. The communication must be between a client and a licensed attorney. It must be confidential, meaning it was not shared with unnecessary third parties. And it must be made for the purpose of obtaining legal advice, not simply business strategy or operational guidance.
That last point trips up tech companies constantly. When an in-house lawyer at a software firm weighs in on a product roadmap meeting or advises on a marketing campaign, those communications often blur the line between legal counsel and business consulting. Courts have repeatedly found that when lawyers wear two hats, the privilege may not protect the business-hat communications. In April 2025, in Epic Games v. Apple, a federal judge in the Northern District of California found that Apple had improperly claimed privilege over documents mixing legal and business advice, writing that “adding a lawyer’s name to a document does not create a privilege.”
Where Tech Companies Get It Wrong
The technology sector has become a particularly fertile ground for privilege disputes, largely because in-house legal teams are deeply embedded in product development, data policy, and regulatory compliance. Lawyers at large platforms often help draft privacy policies, review algorithmic decisions, and participate in meetings about content moderation. When those companies face government investigations or civil litigation, opposing counsel frequently argues that the documents are not privileged because the lawyers were acting as business advisors, not legal counselors.
Government enforcers, including the Department of Justice in its antitrust case against Google, have challenged privilege claims on precisely this ground. In discovery battles, courts scrutinize whether a communication’s “primary purpose” was legal advice. Work-product protection, a separate doctrine, asks a different question: whether a document was prepared because of anticipated litigation.
Another common mistake is forwarding privileged communications to outside consultants, public relations firms, or other third parties who are not strictly necessary to the legal representation. Sharing a privileged memo with a PR firm, for example, can destroy the privilege for that document, depending on the circumstances and the jurisdiction.
The Crime-Fraud Exception and Other Limits
Privilege has a hard ceiling. The crime-fraud exception holds that if a client seeks legal advice in furtherance of a crime or fraud, those communications are not protected. Courts can review documents in private (a process called in camera review) to determine whether the exception applies, meaning a judge may read the supposedly privileged material before deciding whether to hand it over.
Beyond crime-fraud, privilege can also be waived by putting the advice itself at issue in litigation, by voluntarily disclosing the communication to adversaries, or simply by being careless about confidentiality. A common way privilege is lost in practice is when employees casually forward legal memos across departments or to people outside the legal relationship, which can gut the protection.
For individuals navigating legal matters, keeping communications with your attorney private and separate from general business discussions is not just good practice. It is the foundation of the entire protection. The rules vary by jurisdiction, so this is general information, not legal advice.
The Takeaway
Attorney-client privilege remains one of the most valuable tools in both corporate and personal legal defense. But it is not a label you can slap onto any document you want to hide. As courts continue to scrutinize how tech companies use their legal teams, the message is clear: privilege must be earned through careful, disciplined practice, not assumed. Companies and individuals alike would be wise to work with counsel to establish clear protocols now, before they find themselves arguing about it in a courtroom.