Last week’s Privilege Point discussed Illinois federal court and Illinois state court decisions issued just ten days apart — disagreeing about whether litigants asserting attorney-client privilege or work product protection can rely on a presumption favoring the protections’ availability. Unfortunately, many courts agree on a worrisome presumption that disfavors in-house lawyers.
In the Illinois federal court decision, Urban 8 Fox Lake Corp. v. Nationwide Affordable Housing Fund 4, LLC, the court followed its rejection of any general presumption favoring privilege or work product protection with an acknowledgment of an opposite presumption: “courts presume that where in-house counsel is involved, ‘the attorney’s input is more likely business rather than legal in nature.'” No. 18 C 6109, 2020 U.S. Dist. LEXIS 5650, at *10 (N.D. Ill. Jan. 13, 2020) (quoting Smith v. Bd. of Educ., No. 17 C 7034, 2019 U.S. Dist. LEXIS 102326, at *2 (N.D. Ill. June 19, 2019)). Even courts that do not recognize a presumption against in-house lawyers’ privilege claims normally give such privilege assertions more scrutiny. For instance, in United States v. Microsoft Corp., No. C15-102RSM, 2020 U.S. Dist. LEXIS 8781, at *13 (W.D. Wash. Jan. 17, 2020), the court held that companies claiming privilege protection for communications to or from their in-house lawyers must make a “clear showing that the speaker made the communication for the purpose of obtaining or providing legal advice” (quoting Chandola v. Seattle Hous. Auth., No. C13-557RSM, 2014 U.S. Dist. LEXIS 132193, at *6 (W.D. Wash. Sept. 19, 2014)).
In-house lawyers should keep in mind this nearly universal judicial hostility, and consider: (1) training their colleagues to explicitly ask for legal advice on the face of any documents if that is what they seek; and (2) themselves memorializing that primary purpose on the face of their responses to those colleagues.