Court Confirms Non-Privileged Nature of Underlying Facts

September 25, 2002

The attorney-client privilege normally covers communications between clients and lawyers under certain specific conditions. However, the privilege rarely, if ever, protects facts which the lawyer obtains from a third party and then conveys to the client.

In I.L.G.W.U. National Retirement Fund v. Cuddlecoat, Inc., No. 01 Civ.4019(BSJ)(DFE), 2002 U.S. Dist. LEXIS 2993, at *5-6 (S.D.N.Y. Feb. 22, 2002) (citation omitted), the court relied upon an earlier Southern District of New York case in explaining that “plaintiffs must answer the following questions . . . : When did you first learn facts that led you to believe that you were fraudulently induced to sign your release? What were those facts? . . . . What specific information did you learn?”

Lawyers must carefully distinguish between lawyer-client communications that do not deserve privilege protection because they simply relay facts, and lawyer-client communications that deserve protection because they provide analysis or advice.