Piercing the attorney-client privilege may be one of opposing counsel’s top priorities irrespective of the strength of their case. The privilege protects confidential communications between the client and the lawyer made for the purpose of obtaining or providing legal assistance, to “encourage full and frank communication . . . and thereby promote broader public interests in the observance of law and administration of justice.” United States v. Zolin, 491 U.S. at 562, 109 S.Ct. 2619 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). But the privilege may not apply, it may be waived, or there may be exceptions to it. Counsel’s position on issues concerning potentially privileged documents impacts his or her credibility with the court, so it is advisable to be fully familiar with the scope of the privilege from the first time the issue arises in a matter, and not when it is too late.
Is It Privileged at All?
Communications to or from a lawyer that don’t seek or give legal advice are not privileged. So, for example, an attorney functioning as a business agent does not qualify for application of the attorney-client privilege. In-house counsel often has business-oriented duties, and business and legal advice are sometimes so intertwined that a clean distinction may not exist. Compare Note Funding Corp. v. Bobian Invest. Co., No. 93 CIV. 7427 (DAB), 1995 WL 662402, (S.D.N.Y. Nov. 9, 1995) (Privileged where counsel discussed legal issues and financial, commercial, and tactical matters in context of providing legal advice and functioning as a lawyer) with Georgia-Pac. Corp. v. GAF Roofing Mfg. Corp., No. 93 CIV. 5125 (RPP), 1996 WL 29392, (S.D.N.Y. Jan. 25, 1996) (Not privileged where company lawyer provided legal advice to management that did not trump the business-oriented aspect of negotiating the agreement). Officers, directors, and employees must rely on in-house counsel to understand the difference. The predominant purpose of the communications should seek legal services for the privilege to apply. Copying in-house counsel on communications does not make them privileged.
Was the Privilege Waived?
A waiver can occur from a variety of conduct that fails to maintain the confidentiality of the communication. Either voluntary or inadvertent disclosure to outside or non-covered recipients, professional advisors outside the privilege, and experts and consultants, can result in waiver as a matter of law. E-mails can waive the privilege and show up as litigation exhibits for lots of reasons: as a result of their high volume; due to quick and hastened responses sent without reflection; as emotional, subjective, or reactionary responses; based on the ease of “reply all” and forwarding; and given their informal nature and permanence. Any and all of these can create problems later. Social media is also prolific and similarly fraught with an invitation for waiver.
Is There an Exception?
“The reasons for protecting the ‘confidences of wrongdoers’ ‘ceas[e] to operate . . . where the desired advice refers not to prior wrongdoing, but to future wrongdoing.’” Zolin, 491 U.S. at 562–63, 109 S.Ct. 2619. “[T]he ‘seal of secrecy,’ ... between lawyer and client does not extend to communications ‘made for the purpose of getting advice for the commission of a fraud’ or crime.” Id. at 563, 109 S.Ct. 2619. “The lawyers' innocence does not preserve the attorney-client privilege against the crime-fraud exception.” U.S. v. Chen, 99 F.3d 1495, 1504 (9th Cir. 1996); U.S. v. Doe, 429 F.3d 450, 454 (3d Cir. 2005). The initial burden of proof rests on the party invoking the crime-fraud exception. U.S. v. BDO Seidman, LLP, 492 F. 3d 806, 818 (7th Cir. 2007). The party asserting the attorney-client privilege must then show an explanation. Id.
“The scope of the crime-fraud exception is gradually being expanded by the courts through the increased use of in camera review and lowered thresholds of proof. . . . [T]he current trend toward converting what was once civil liability into potential criminal liability portends even greater application of the crime-fraud exception simply by expanding the types of conduct considered ‘criminal.’” The Crime-Fraud Exception to the Attorney-Client Privilege, 32 No. 2 Corp Couns Quarterly ART 5 (2016). See Micron Technology, Inc. v. Rambus, Inc., 98 U.S.P.Q.2d 1693, 2011 WL 1815975 (Fed. Cir. 2011)(destruction of evidence in patent infringement case).
Best Practices Checklist
- Can communication be accomplished other than in writing?
- Is the written content anything that could be construed as improper?
- Who are the recipients, and why are they included? Is each necessary for the issue?
- Clearly identify when seeking or providing legal advice.
- Only outside counsel should retain and communicate with consultants during litigation. Retention by in-house counsel is preferable to retention by corporate management.
- Document business advice separately
- Explain privilege limits and waiver to the client at the beginning and throughout a matter
- Maintain privileged documents in lawyer files only, where possible
- Would I be OK with this email if it was published in the media?