Do Lawyers’ Memos to the File Deserve Privilege Protection?

May 6, 2015

Not surprisingly, many lawyers think the attorney-client privilege (if not the whole world) revolves around them. Actually, the privilege primarily protects clients’ communications to lawyers, not vice versa. And because the privilege normally protects only client-lawyer communications, lawyers face an uphill climb when seeking privilege protection for documents they have not sent to their clients.

In Broadrock Gas Services, LLC v. AIG Specialty Insurance Co., No. 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. Mar. 2, 2015), defendant claimed privilege protection for a K&L Gates lawyer’s memorandum to the file analyzing insurance coverage issues. In an opinion by Judge Dolinger, the court first noted that there was “no evidence in our record” that (1) K&L Gates sent the memo to the client; (2) K&L “used [it] to advise the client”; or (3) the memo “described or embodied the substance of any communication between the client and the attorney.” Id. at *7. The court rejected defendant’s privilege claim — emphasizing that the privilege “is limited to communications between client and attorney” or others facilitating the attorney-client relationship. Id. The court also quoted an earlier Southern District of New York decision holding that the privilege did not protect “‘documents embodying uncommunicated thoughts of counsel, as in the form of notes or memoranda to the file.'” Id. at *7-8 (quoting Bodega Invs., LLC v. United States, No. 08 Civ. 4065 (RMB)(MHD), 2009 U.S. Dist. LEXIS 48513, at *27 n.5 (S.D.N.Y. May 14, 2009)).

In assessing privilege protection, lawyers should recognize their secondary role — and not assume that their uncommunicated documents automatically deserve privilege protection.