The attorney-client privilege only protects communications between clients and their lawyers primarily related to the former’s request for legal advice or the latter’s provision of that advice. Not surprisingly, simply copying a lawyer on an otherwise non-privileged email does not guarantee privilege protection. On the other hand, a client copying a lawyer on an email might be seeking legal advice about the email’s content. Four decisions issued in a five-week period addressed this issue. One court protected such an email, and three courts did not.
In Pownell v. Credo Petroleum Corp., Civ. A. No. 09-cv-01540-WYD-KLM, 2011 U.S. Dist. LEXIS 35869, at *9 (D. Colo. Mar. 17, 2011), the court rejected the argument that a business person added a lawyer “as a carbon copy recipient of this email because he wanted [the lawyer’s] advice regarding the issues raised in the email.” The court noted that the sender offered to supply an affidavit explaining this motivation, but instead explained that “[a]fter reviewing the email exchange in camera, the Court finds that the email messages were not ‘made for the express purpose of securing legal’ advice.” Id. at *10 (citation omitted). Twelve days later, the Northern District of California reached the opposite conclusion. In Aristocrat Technologies Australia PTY Ltd v. International Game Technology, Case No. C 06-03717 RMW (PSG), 2011 U.S. Dist. LEXIS 37301, at *10 (N.D. Cal. Mar. 29, 2011), the court held that while copying a lawyer on an email “may not be sufficient to support the assertion of privilege, it also is not fatal to the assertion.” The court held that the following “log entry as a whole” demonstrated the privilege’s applicability: “email reflecting and/or seeking legal advice from David Greenslade regarding Hyperlink approval in New South Wales.” Id.
Lawyers should train their clients who copy them on emails to explain why they are copying the lawyer. If accurate, the client should indicate that the client seeks the lawyer’s advice about the email content. Otherwise, there is little chance to win a privilege argument. Next week’s Privilege Point will discuss two more cases decided at about the same time.