How Do Courts Decide If Employees CC’ing a Lawyer are Implicitly Seeking Legal Advice?

December 6, 2017

Electronic communications exacerbate judges’ already difficult task of determining if employees copying lawyers on their communications with fellow employees are implicitly seeking legal advice – and thus deserve privilege protection.  The increasing volume of emails understandably tempts judges to look only at the face of emails for employees’ explicit requests for legal advice.  And given the accelerating tempo of employees’ electronic communications, those communications are increasingly cryptic.

In Greater New York Taxi Ass’n v. City of New York, No. 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017), Magistrate Judge Francis articulated a common-sense approach.  He noted that courts hold “that communications constitute implicit requests for legal advice where an attorney is copied on the communications and the communications implicate specific legal issues.”  Id. at *3-4.  He found that some emails defendant had redacted “fit into that framework” – because defendant’s commissioners copied their general counsel when they communicated “about how to craft a new set of legal rules after a court invalidated their initial set of rules.”  Id. at *34-35.  In contrast, Judge Francis rejected defendant’s privilege claim for another email on which a commissioner had copied a lawyer – because “there is no indication that it solicits legal advice or implicates a specific legal issue.”  Id. at *36.

Wise lawyers train their corporate clients’ executives and employees to explicitly seek legal advice when they want it, but Judge Francis’s wise approach gives hope for privilege claims even in the absence of such explicit requests.