Many lawyers overlook one of the critical elements in establishing the attorney-client privilege—the necessity that communications between the client and lawyer relate to a request for, or the rendering of, legal advice. A recent case emphasized this requirement in finding that the privilege did not apply to communications between a client and a lawyer.
In Prevue Pet Products, Inc. v. Avian Adventures, Inc., 200 F.R.D. 413, 416 (N.D. Ill. 2001), the court held that the attorney-client privilege did not apply to communications between a business person and a lawyer, because “the record does not show that Mr. Tamez [business person] used Mr. Sohn [lawyer] as anything more than a scrivener.”
Lawyers hoping to avoid potentially disastrous rulings like this should not presume that communications between them and their clients automatically deserve privilege protection. Instead, lawyers should contemporaneously document the substantive nature of the discussions, using language that clearly indicates their clients’ request for, or their rendering of, legal advice.