Court Criticizes a General Counsel’s Attempt to Fabricate an Attorney-Client Privilege

March 26, 2003

Many clients (especially company employees) erroneously believe that copying a lawyer on a document will allow the assertion of an attorney-client privilege. Most, but not all, lawyers realize that this belief is wrong.

In Bell Microproducts Inc. v. Relational Funding Corp., No. 02 C 329, 2002 U.S. Dist. LEXIS 18121, at *3-4 (N.D. Ill. Sept. 24, 2002), the court pointed to a company’s general counsel’s memorandum to other company employees directing that “unless instructed otherwise, any written correspondence you author, whether by letter, memo, Excel spreadsheet, e-mail, etc., should be directed to my attention (at least as one of the recipients) to assure that the attorney-client privilege is retained.” The court explained that ” [t]hat is not of course how privilege (or for that matter work product) operates.”

Lawyers who represent companies do their clients a disservice by misunderstanding the attorney-client privilege, and (especially) by providing erroneous advice to their clients about how to assure privilege protection.