Courts Look for Lawyers’ Responses to Clients’ Requests for Legal Advice

October 11, 2017

The privilege can protect clients’ requests for legal advice, and lawyers’ responses.  But employees simply cc’ing a lawyer on an email to another employee cannot guarantee privilege protection – because the email might be (1) a protected implicit request for legal advice; (2) an unprotected but good faith effort to keep the lawyer “in the loop”; or (3) an improper attempt to gin up a privilege claim.

In Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017), the court acknowledged that some employee-to-employee emails deserved privilege protection — because they conveyed legal advice to those who needed it.  But the court rejected privilege protection for one email which cc’d a lawyer.  Among other things, the court noted that “[a]t no point did [the lawyer who was cc’d] actually respond to the inquiries with legal advice.”  Id. at *11.

Other courts focus on the same thing – looking for a dialogue in which clients ask for legal advice and lawyers provide it.  Lawyers may find themselves far too busy to respond to every email, but they should remember that their silence could doom a privilege claim.  Such lawyers should consider responding to any emails that could be misinterpreted or damaging if a court short circuits its privilege review and rejects a valid privilege claim simply because there has been no dialogue.