Court Incorrectly Analyzes Privilege Protection for Draft Bankruptcy Filing

March 21, 2007

The attorney-client privilege clearly does not protect documents intended for disclosure outside the intimate attorney-client relationship. However, some courts extrapolate this principle too far — stripping privilege protection from drafts of such documents.

In United States v. Naegele, Crim. No. 05-0151 (PLF), 2007 U.S. Dist. LEXIS 124, at *14 (D.D.C. Jan. 4, 2007) (emphasis in original), the court held that the attorney-client privilege did not protect a lawyer’s drafts of a client’s bankruptcy filing: “The Court concludes that draft bankruptcy filings are no more entitled to protection on the basis of privilege than are the filings actually made. By definition, they are not confidential communications between a client and an attorney; they and their contents are intended to be disclosed. They therefore are not protected from disclosure by the attorney-client privilege.”

This is wrong. The fact that a document’s author intends to disclose the final draft does not mean that preliminary drafts do not deserve confidentiality (e.g., a judge’s draft opinion). The privilege can protect preliminary drafts (reflecting a lawyer’s advice) of documents intended for ultimate disclosure — only the final draft loses the protection, and only then at the moment of disclosure.