In-House Counsel’s Dual Role: The Primary Pitfall

In “In-House Counsel’s Compass: Navigating Privilege, Immunity and Risk in Texas and Beyond”, Trey Cox and Alan Dabdoub explore the challenges and pitfalls for in-house lawyers navigating privilege today. The highlight below examines the dual and often conflicting roles for today’s

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One email. Two sentences. One is privileged and one is not.

The CEO taps dashes off an email to the general counsel: “What do you think of raising prices 10% in Q3?”

Counsel answers: “If we raise prices, we risk antitrust scrutiny, especially given our market share. From a legal perspective, we should document a legitimate business justification.”

Sentence one is an economic opinion about pricing. It’s business advice and not privileged. Sentence two is an antitrust legal risk assessment — privileged.

Now watch what the other side does with it. They will not argue about whether the email exists. They will argue the primary purpose of the whole communication was business strategy, and that the legal content was along for the ride. That is the most common privilege fight a general counsel will ever have, and it is decided by details that may have felt trivial when you hit “send”: the language, the audience, the purpose.

In “In-House Counsel’s Compass,” Trey Cox and Alan Dabdoub provide a practical playbook for litigators who understand that the outcome of a case is often determined long before trial begins. Buy It Now.

Three habits can change the outcome:

Label consistently. “Privileged and confidential: attorney-client communication” is not dispositive, but courts give consistent labeling weight.

Segregate the advice. Business input goes in one channel. Legal risk assessment goes in another. Stop blending them in a single paragraph because it is faster.

Train the executives. Over-inclusion dilutes privilege. Teach your business teams to bring you in when they need legal advice, not as a courtesy copy.