Must Privileged Communications Always Involve a Lawyer?

June 2, 2004

Those taking a simplistic view of the attorney-client privilege sometimes reject the notion that the privilege can ever protect communications that do not involve a lawyer. Although the standard formulation of the privilege obviously mentions lawyers, the privilege’s applicability can be more subtle.

In Baptiste v. Cushman & Wakefield, Inc., No. 03 Civ. 2102 (RCC)(THK), 2004 U.S. Dist. LEXIS 2579 (S.D.N.Y. Feb. 20, 2004), an employment discrimination plaintiff claims to have found an envelope full of internal corporate e-mails left on her desk. In seeking to avoid having to return the e-mails, the plaintiff argued that some of the e-mails could not be protected by the privilege because they were not sent by or to a lawyer. Recognizing that “communications from counsel to a single corporate executive acting on behalf of the corporate client retained their privileged status when communicated to other executives who have relevant responsibility,” the court rejected plaintiff’s argument. Id. at *7. The court noted that the questioned e-mails were conveying outside counsel’s advice from one executive to another, and concluded that “it is of no moment that the e-mail was not authored by an attorney or addressed to an attorney.” Id. (emphasis added).

A lawyer looking simply at the standard attorney-client privilege formulation can miss such subtleties.