Are Internal Law Firm Documents Protected by the Attorney-Client Privilege?

July 19, 2006

Lawyers sometimes mistakenly think that the attorney‑client privilege exists to protect their work. Actually, the privilege was developed to protect clients’ communication of facts to their lawyers.

In Sheeks v. El Paso County School District No. 11, Civ. A. No. 04-cv-1946-ZLW-CBS, 2006 U.S. Dist. LEXIS 27579 (D. Colo. Apr. 12, 2006), a court relied on this basic principle in denying privilege protection for documents defendant claimed to be privileged. As the court explained it, “Defendant has cited no authority, and the Court has found none, indicating that internal law firm communications which are not conveyed to the client are covered by the attorney‑client privilege.” Id. at *3.

The answer might have been different if the documents had been drafts of communications or had memorialized communications. However, the court’s proper emphasis on communication should remind all lawyers that the privilege does not revolve around them.