Courts Assess Whether Client and Lawyer Agents are Inside or Outside Privilege Protection: Part II

July 22, 2015

Last week’s Privilege Point discussed a court’s consideration of privilege protection for communications with client and lawyer agents. Two weeks later, another court analyzed Debevoise & Plimpton’s argument that the privilege protected its communications with a public relations firm it retained. Debevoise claimed that the public relations firm assisted it in representing its client nonparty Syracuse University in connection with a former coach’s wife’s defamation action against ESPN. Fine v. ESPN, Inc., No. 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015).

The University relied on affidavits (including one from a Debevoise lawyer) in explaining that the public relations firm (1) “aided [Debevoise] attorneys in providing legal advice to the University on issues of communication and publicity”; (2) “‘conferred frequently’ with Debevoise”; and (3) “‘prepar[ed] drafts of press releases and other materials which incorporated the lawyers’ advice.'” Id. at *28-29 (internal citations and quotation marks omitted). The court rejected the privilege claim — noting that “[i]f public relations support is merely helpful, but not necessary to the provision of legal advice,” the privilege does not apply. Id. at *32. The court also noted that the magistrate judge had reviewed the withheld communications in camera, and found that most of them “did not contain communications related to obtaining legal advice.” Id. at *31. The court therefore held that Debevoise had lost the client’s privilege by communicating with the public relations firm — even though Debevoise had retained the firm and supplied an affidavit supporting the privilege claim. The court also observed that the magistrate judge had earlier rejected the University’s work product claim — finding that the University had conducted “for business purposes” its investigation into child molestation claims against the coach. Id. at *5.

Even sophisticated clients and law firms can underestimate the privilege’s narrowness and fragility. If lawyers find it necessary to work with agents, their communications should reflect why and how.