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When To Keep Quiet So As Not To Jeopardize an Executive Employment Deal (Part 1)

Here are the essential reasons why every executive client — both before as well as after they have retained an executive employment attorney — should not be speaking or writing or emailing or connecting on social media, even to friends much less to the world at large, about their employment situation. Sharing can be a noble human trait, but sharing information with anyone other than the client’s own executive compensation counsel can have disastrous consequences.

Let’s start with the basics. At the beginning of our representation of each new client, we try to educate the client about the attorney-client privilege. Although whole treatises have been written about the technical nuances of this subject, its fundamental principles are easy to understand. Our legal system has long recognized the wisdom of encouraging the free and fearless interchange of information between clients and their attorneys by protecting the confidentiality of their communications. Thus, what clients confide in their attorneys, and what those attorneys tell their clients by way of impressions, strategy and advice, is covered by the attorney-client privilege (similar concerns accord a similar if somewhat different confidentiality privilege to communications between patients and their doctors, therapy clients and their counselors, and parishioners or congregants and their clerics).

This is not the place to get into the details of the rule and its exceptions (e.g., you can’t tell us that you are about to murder someone and expect us to keep it confidential), but you can assume that the general rule — what you tell us in confidence will (and must) be held by us in confidence — applies broadly in the context of executive employment negotiations when the client is being hired or fired. As one hypothetical example, we may vigorously negotiate for a certain salary while keeping confidential our belief that the client may be willing to accept a lesser amount.

The key is that the privilege belongs to the client, not to the attorney. The attorney cannot divulge a client confidence without instructions from the client to do so unless the relevant information has already otherwise become properly known to others. However — and here we get into the first reason for the client to remain silent — clients themselves can undercut the privilege (thereby “waiving” or “destroying” their own attorney-client privilege) if they share the communications with people other than their own attorneys. If we advise on a course of legal action, and the client shares our strategy, or even our comments, during a cocktail party conversation, the client loses his or her attorney-client privilege relating to that information (and, depending on the circumstances, may even jeopardize the protection of confidentiality for all other communications between the client and the attorney).

This potentially serious loss is the reason we advise clients not to discuss — with anyone other than their spouses or domestic partners (who are usually deeply involved in and affected by executive employment decisions) — what they say or what we say in the course of our legal representation.

This also is why we tell clients when they hire us — bluntly, although I hope not rudely — to stop talking and resist the natural temptation to share information with others, and why we always hope they have been silent, or at least discreet and circumspect, even before they have contacted us.

As a side note, this desire to preserve and protect the confidentiality of our communications with our clients is also why we insist that clients communicate with us only on their own personal computers, tablets and phones and through their own private email accounts, and not on the electronic devices or office email account maintained by or for their employer. As every employee handbook of every company in America does or should state, no employee, up to and including the chief executive officer, has any expectation of privacy when using a company computer, communication device or work-related email address. (And the larger point is that no private or personal non-work communications or records should ever be transmitted to or from or stored on any employer’s computer; there can be considerable extra work and expense, not to mention embarrassment, in trying to retrieve, for example, an executive’s personal banking or medical records from a work computer after the executive has been terminated.)

In Part II of this post, we will discuss some more practical considerations.

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.