Lawyers as “Scriveners” Generally do not Deserve Privilege Protection

November 10, 2004

Because the attorney-client privilege only covers communications relating to the request for or rendering of legal advice, communications to or from lawyers playing other roles generally do not deserve privilege protection. This may be an obvious point in connection with lawyers giving purely business advice, acting as a friend rather than a lawyer, etc., but the issue sometimes proves more subtle.

In 40 Gardenville LLC v. Travelers Property Casualty, No. 02CV788, 2004 U.S. Dist. LEXIS 8846 (W.D.N.Y. Apr. 22, 2004), the court criticized the plaintiff for not preparing a privilege log. The court noted that real estate lawyers often act as “’mere scrivener[s]’” and thus do not deserve privilege protection for some communications. Id. at *9 (internal citation omitted). Given this possibility, the plaintiff’s failure to provide either a privilege log or affidavits explaining that the documents reflected lawyers acting as legal advisors led the court to order the documents produced.

Lawyers hoping to avoid a similar result should document the role that they played in creating protected documents.