Court Analyzes the Subtle Nature of the Attorney-Client Privilege Covering a Law Firm’s Own In-House Lawyer

December 23, 2002

Courts recognize that law firms may designate one of their own lawyers to gather facts and advise the firm in connection with clients’ malpractice claims against the law firm—all within the protective cloak of the attorney-client privilege. However, such a privilege analysis will reflect the nuances that govern the attorney-client privilege wherever it applies.

In Nesse v. Shaw Pittman, 206 F.R.D. 325, 330 (D.D.C. 2002), the court held that (1) the attorney-client privilege protected notes taken by a lawyer during a meeting attended by the law firm’s partner designated to advise the firm in connection with a client’s malpractice claim, but (2) did not protect notes taken by the same lawyer at internal meetings that were not attended by the partner designated to advise the firm. The court explained that “[a]ny other rule would insulate from disclosure what clients say to each other merely because they have been discussing a matter that their attorney has investigated and, during that investigation, has spoken to one of the participants in the discussion. Shielding the exchange among clients has nothing to do with encouraging them to be candid when they speak to a lawyer and the law has no interest in whether they are candid with each other.”

Lawyers will obviously find this analysis interesting because it hits so close to home, but they should also recognize that the principle articulated in Nesse applies in all situations.