Attorney-Client Privilege Protection Normally Requires a “Communication”

January 25, 2012

Unlike work product protection, attorney-client privilege protection normally requires a “communication” between a client and a lawyer. To be sure, the privilege can protect (1) a client’s communication intended for a lawyer, but which has not yet arrived; (2) a client’s uncommunicated memorialization of a privileged communication; or (3) communications among joint clients or among employees of a corporate client formulating a request for legal advice or relaying a lawyer’s legal advice. However, clients frequently have difficulty establishing the applicability of the privilege protection in those rare circumstances.

In Graves v. Deutsche Bank Securities, Inc., No. 07 Civ. 5471 (BSJ)(KNF), 2011 U.S. Dist. LEXIS 140429 (S.D.N.Y. Dec. 5, 2011), Judge Jones refused to protect notes prepared by an age discrimination plaintiff. The court noted that the plaintiff’s privilege log “does not indicate that the notes were actually communicated to counsel, but merely that they were received by counsel.” Id. at *4. The court explained that “[t]here is a critical distinction between receipt and communication since documents do not become privileged simply because they are held by counsel.” Id. at *4-5.

Many lawyers incorrectly assume that the privilege automatically protects client documents that end up in the lawyer’s files. Instead, the lawyers must be prepared to explain how such documents fit into one of the narrow protected categories described above.