Courts have long recognized that the attorney-client privilege can cover communications to or from a lawyer’s agents (including legal assistants on the lawyer’s staff) if the agents are facilitating a request for, or the rendering of, legal advice. See e.g., Restatement (Third) of Law Governing Lawyers §70 cmt. g, at 539 (1998). However, a recent case provides a frightening reminder that only communications meeting that specific standard deserve protection.
In HPD Laboratories, Inc. v. Clorox Co., 202 F.R.D. 410 (D. N.J., 2001), HPD sued Clorox in a significant intellectual property and unfair competition lawsuit. HPD sought to discover communications between Clorox employees and Karen Peeff—who had been an in-house legal assistant at Clorox for 15 years. The Magistrate Judge noted that Ms. Peeff met with Clorox employees without a lawyer present, communicated with Clorox employees without providing a copy of the communication to any Clorox lawyers, and apparently provided her own advice to the Clorox employees. Deposition testimony of Clorox employees confirmed that they sought Ms. Peeff’s own advice and did not view her as a conduit for communications to or from Clorox lawyers.
Clorox argued that Ms. Peeff worked generally under a lawyer’s supervision, and sought a lawyer’s specific advice for any “unusual or novel” issues. The Magistrate Judge rejected Clorox’s arguments, and ordered the company to produce the documents—because Ms. Peeff was not assisting a lawyer in obtaining facts or providing legal advice. Instead, she was acting independently, and therefore did not deserve privilege protection because she was not a lawyer.
Any outside or inside corporate lawyer should read this opinion and assure that their clients avoid the mistakes that Clorox made. Among other things, lawyers should normally be involved in meetings and e-mail communications.