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Litigation News

Litigation News | 2021

Attorney-Client Privilege Covers Pre-relationship Materials

Nhan Ho


  • Documents prepared for the purpose of obtaining legal advice are privileged regardless of when they were created, but the underlying facts are still discoverable.
  • It is the purpose of a communication, and not its timing, that determines whether the attorney-client privilege applies. 
Attorney-Client Privilege Covers Pre-relationship Materials
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It is the purpose of a communication, and not its timing, that determines whether the attorney-client privilege applies. A federal district court held that the privilege extends to documents prepared by a plaintiff—before he retained a lawyer—where the plaintiff intended to provide the documents to the future lawyer to obtain legal advice. ABA Litigation Section leaders agree with the court’s decision to protect the sanctity of the attorney-client privilege.

Privileged Documents Prepared Before Engaging Counsel

In Nelson v. City of Hartford, the plaintiff, a retired police officer, sued the city (his former employer) for constructive discharge in the U.S. District Court for the District of Connecticut. The plaintiff alleged that the city had subjected him to a hostile work environment in retaliation for his support of another employee’s discrimination complaints against the city.

During discovery, the city learned that the plaintiff contemporaneously recorded the events alleged in the lawsuit in a diary before retaining an attorney. Once represented by counsel, the plaintiff reorganized and revised his diary and provided it to his lawyer to help explain his need for legal representation. The only available version of the plaintiff’s diary was the one he edited and modified specifically to be provided to counsel. The city moved to compel the production of the diary, and the plaintiff responded that it was covered by attorney-client privilege.

The court agreed with the plaintiff. The court was not interested in whether the plaintiff created the diary before or after the plaintiff retained counsel, but whether he prepared it to communicate with counsel in confidence. Had the diary been created for the plaintiff’s personal use, it would not have been privileged as attorney-client communication. But here, the plaintiff’s purpose for contemporaneously recording the notes was to provide them to counsel to solicit legal advice. Thus, the court denied the city’s motion to compel. However, the court said that the facts contained in the diary were not protected, and the city was still entitled to ask plaintiff about the facts underlying his allegation.

“Why” Matters

Litigation Section leaders agree that Nelson was correctly decided. “There is no difference between telling the lawyer what happened and writing down what happened and turning the notes over to the lawyer; they are both communications to get legal advice,” notes John M. Barkett, cochair of the Section’s Ethics & Professionalism Committee. “As the judge found that the notes were prepared to be given to the lawyer to obtain legal advice, they were correctly found to be privileged,” he adds.

“Merely passing notes along to a lawyer is not what made the ‘diary’ at issue privileged,” explains John P. Hutchins, cochair of the Section’s Trial Practice Committee. “Rather, it is that the diary was prepared by the plaintiff in anticipation of retaining counsel, with the idea that the future client would pass the notes onto his counsel, whenever he retained a lawyer, in order to aid in seeking advice,” he continues. “It is not correct to say that the notes in Nelson were ‘otherwise not privileged’ and they somehow magically became privileged at the time they were passed to counsel,” adds Hutchins.

In the same vein, Section leaders do not find it relevant that the only available version of the notes was the one revised and given to the lawyer. “The result should be the same as long as the purpose of the notes was to retain legal advice; once that is found to be the reason behind the creation of the notes, they are privileged,” states Barkett. Likewise, Hutchins thinks that “the court’s comments about the previous versions of the diary is mostly dicta, because even if the previous versions exist, the court would likely have considered them privileged as well.”

The End Game

“The attorney-client privilege should not be undermined, especially in this case where the city can discover the facts underlying this claim,” opines Barkett. In other words, the city did not need access to the notes to investigate the facts. The plaintiff was still obligated to disclose witnesses who had knowledge about the case and the relevant documents that may be used to support the claims, under Federal Rule of Civil Procedure 26(a)(1)’s initial disclosure requirements. “All the information would come out through the plaintiff’s deposition if defense counsel asks the relevant questions about the facts underlying plaintiff’s allegations,” explains Barkett.

However, if the plaintiff’s testimony differs from what he told his lawyer through the notes and the information was material, the plaintiff’s counsel would have an ethical duty to take reasonable remedial measures under Model Rule of Professional Conduct 3.3, Barkett notes. Additionally, if the plaintiff’s diary was used to prepare him for his deposition, Barkett advises the city could ask to see it under Federal Rule of Evidence 612, which entitles a party to review a writing used to refresh a witness’s memory. In other words, the city can obtain still obtain all the facts within the notes even though it lost the battle over the privileged status of those notes.