Can the Attorney-Client Privilege Protect Uncommunicated Lawyer Notes?

January 8, 2003

Lawyers routinely refer to privileged “information,” but the attorney-client privilege actually focuses on communications rather than information. In fact, in many situations, the privilege does not cover a client’s or a lawyer’s thoughts or statements unless they are communicated to the other.

In American National Bank & Trust Co. v. AXA Client Solutions, LLC, No. 00-C-6786, 2002 U.S. Dist. LEXIS 4805 (N.D. Ill. Mar. 20, 2002), the court held that the attorney-client privilege did not cover handwritten notes by an in-house lawyer because the lawyer had not communicated them to anyone else.

While the attorney-client privilege can clearly protect uncommunicated notes such as a lawyer’s memorialization of an earlier conversation with a client, lawyers should never assume that their own writings will automatically be protected by the attorney-client privilege.