Can a Communication Sent to Thousands of People Ever be Privileged?

December 3, 2003

The attorney-client privilege arises from the intimacy of communications between clients and their lawyers. Lawyers representing more than one client on the same matter may have privileged communication with all of them, but how many clients may be included in such an “intimate” relationship with one lawyer?

In Southern Scrap Material Co. v. Fleming, No. 01-2554 SECTION: “M” (3), 2003 U.S. Dist. LEXIS 13558 (E.D. La. July 29, 2003), the court addressed the inadvertent production to plaintiffs of a newsletter (entitled “Scrap Notes”) that defendants’ lawyer periodically sent to his clients. The newsletter claimed on its face to be privileged, and the lawyer sent the newsletter to thousands of people with whom he claimed an attorney-client relationship. The court ordered the plaintiffs to return the newsletter, relying on several earlier cases (involving mass torts in which lawyers represented thousands of plaintiffs) in finding that a lawyer may have privileged communications with thousands of clients.

As long as lawyers can meet all of the indicia of the attorney-client privilege, they apparently can assert the privilege regardless of the number of clients within the “intimate” attorney-client relationship.