Court Finds That the Timing of Statements at a Meeting Can Affect Applicability of the Attorney-Client Privilege

July 27, 2000

The attorney-client privilege protects (under certain circumstances) statements that a client makes to the lawyer in seeking legal advice from the lawyer, as well as the lawyer’s legal advice given in return.

The Southern District of New York recently took a hostile approach to the privilege that applied to conversations during a meeting between New York City Police Department officials and lawyers for the Police Department. In Marsh v. Safir, No. 99 Civ. 8605 (JGK) (MHD), 2000 U.S. Dist. LEXIS 5136, at *39 (S.D.N.Y. Apr. 20, 2000), the court indicated that statements New York City police officials made after the lawyer provided his advice could not be protected by the privilege because they could not have been factual statements given to the lawyer to assist in the rendering of legal advice—which had already been given.

Not all courts are likely to adopt this narrow approach, but lawyers and clients should be aware of decisions like this when structuring meetings and exchanging information.