Courts Analyze Privilege Protection for Lawyer-to-Client Communications

April 29, 2009

At its heart, the attorney-client privilege protects clients’ communications to their lawyers, in which the clients provide facts to the lawyers and either explicitly or implicitly request legal advice about those facts.

Courts disagree about privilege protection for communications going the other way. In Stovall v. United States, 85 Fed. Cl. 810, 815, 814 (Fed. Cl. 2009), the court rejected plaintiff’s claim “that the privilege does not attach to any attorney communications” — citing the Federal Circuit’s rule that the privilege protects lawyer-to-client communications that “reveal, directly or indirectly, the substance of a confidential communication by the client.” Four days later, another court dealt with this issue. In Hadnott v. City of Chicago, No. 07 C 6754, 2009 U.S. Dist. LEXIS 14514, at *12-13 (N.D. Ill. Feb. 24, 2009), the court held that the attorney-client privilege did not protect a lawyer’s communication to her client in which she might have described the physical attributes of a defendant ‑‑ holding that such a communication “does not involve confidential information . . . obtained from her client[], nor will it reveal any such confidential information.” On the same day, the court in Cason-Merenda v. Detroit Medical Center, Civ. A. No. 06-15601, 2009 U.S. Dist. LEXIS 14160, at *7 (E.D. Mich. Feb. 24, 2009), explained that there were “two lines of authority on the level of protection afforded to attorney communications.” The court adopted what it called the “more liberal rule which affords privilege protection to attorney communications containing legal advice to the client, regardless of whether it expressly reveals client confidences.” Id. at *7-8.

These three federal court decisions decided in a four‑day period highlight the courts’ different approaches to privilege protection for lawyers’ communications to their clients.