Plaintiffs challenged the defendants’ redaction and withholding of certain documents on the basis of attorney-client privilege and/or work-product protection. The documents contained communications between attorney-lobbyists hired by the defendant corporations. The corporate defendants submitted the documents to the district court for in camera review.
The court found that, despite the lobbyists being attorneys, many of the documents were not protected. Applying general privilege principles, the court held that “if a lawyer happens to act as a lobbyist, matters conveyed to the attorney for the purpose of having the attorney fulfill the lobbyist role do not become privileged by virtue of the fact that the lobbyist has a law degree or may under other circumstances give legal advice on matters that may also be the subject of the lobbying efforts.”
The court explained that in the lobbying context, the privilege protects legal analysis, such as interpretation or application of legislation to fact scenarios. However, the court held that documents that (1) do not provide analysis or interpretation of legislation, (2) are more in the nature of general lobbying updates, progress reports, or summaries of legislative meetings, or (3) reflect communications with public officials but offer no analysis, are not protected by privilege or as work product. In this case, that holding resulted in the release of numerous documents to the plaintiffs.
“Lobbying is often a mixed bag of legal and business advice, and courts do not want all communications with lobbyists to be privileged,” explains Benjamin K. Sanchez, Houston, TX, cochair of the Discovery and Motion Practice Subcommittee of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. “It all goes toward seeking legal analysis of pending legislation as it affects a particular fact scenario,” he adds. “Simply because a corporation is wanting a lawyer to discuss the effects of pending legislation on the corporation or its business is not enough.”
Not Such a Bright Line
The court relied heavily on the definition of attorney-client privilege, namely, whether the communication was intended to be and was kept confidential, and whether the communication seeks or provides legal advice. Although whether a communication seeks or provides legal advice appears to be a “bright line” rule at first glance, in the lobbying context, the rule may not be as clear as it first seems.
“With lobbying activities, legal analysis is often involved, though that analysis can be somewhat different than what litigators or courts are used to seeing,” explains James A. King, Columbus, OH, vice chair of the Section of Litigation’s Trial Evidence Committee. “Legislation is typically enacted according to rules of the legislative body, for example. The U.S. House and Senate have detailed rules that can be as complex as the Rules of Civil Procedure. A report on legislation is often colored by the lawyer’s/lobbyist’s understanding of those rules. What may appear as a simple report on debates or proposed bills may actually reflect a sophisticated analysis of the legislative rules.”
Protect Your Company and Your Communications
King warns that while the “bright line” rule of legal advice is a starting point, the true question of whether a particular document contains legal analysis “can only be answered on a document-by-document, communication-by-communication, case-by-case basis.”
Given the relative uncertainty of what will be construed as “legal advice,” there are a few steps that corporations and lobbyists can take to increase the chance of communications being protected. King suggests that the corporation and the lobbyist make expectations clear from the outset. For the corporation, that means making it clear that you are engaging the lobbyist to provide legal services, and that you expect all communications to be confidential. For the lobbyist, “make it clear in any retainer or engagement agreement that the lawyer/lobbyist has been hired to provide legal advice. It is important that the agreement be explicit that the lawyer/lobbyist is being hired to provide legal services.”
“It may be a good idea to ensure that in-house attorneys are involved in the communications to ensure that they are protected,” he suggests. “Corporate governmental or public affairs office do not necessarily need to involve counsel for periodic status reports from lobbyists. But if the lobbying activity is specific to the corporation, the corporation should consider forming a legal team that involves non-lobbyist lawyers, along with lawyer/lobbyists, to address the legal problem.”
Sanchez suggests that “any communications that the clients want protected concern specific fact scenarios.” “In other words,” he explains, “if you have a written document, it would be helpful for the client to state the facts that lead them to seek the legal analysis from the attorney, and for the attorney to regurgitate the facts when offering legal advice. That way a court will see that the client and attorney are discussing legal analysis of the pending legislation as it affects a particular scenario, rather than just the general ramifications of the pending legislation.”
Bethany Leigh Rabe is an associate editor for Litigation News.