Can Inactive Lawyers Claim Privilege Protection for their Communications?

April 26, 2017

Some lawyers deliberately or inadvertently let their licenses lapse, but still give advice to clients and prepare related documents. What privilege implications come from such a scenario?

In John Ernst Lucken Revocable Trust v. Heritage Bancshares Group, Inc. , plaintiffs withheld as privileged their communications with Bill Peterson – who had given them advice “since the late 1990s, but [who] has not held an active attorney’s license since 2001” (except for a short period several years earlier). No. 16-CV-4005-MWB, 2017 U.S. Dist. LEXIS 21299, at *1 (N.D. Iowa Feb. 15, 2017). After noting the lack of any Eighth Circuit authority, the court followed the generally accepted rule that the privilege can apply “where the person asserting the privilege had a reasonable but mistaken belief that the person with whom they were communicating was in fact a licensed attorney.” Id. at * 3‑4. The court ultimately rejected plaintiffs’ privilege claim, noting that they had not produced any evidence “demonstrating [that they] had a reasonable belief Peterson was licensed to engage in the practice of law after 2001.” Id. at *7. Among other things, the court pointed to Peterson’s reference to himself as a “[b]usiness consultant.” Id.

As other courts reaching the same conclusion have noted, a different approach would punish “the unsuspecting ‘client’ when it comes to light the imposter is not actually licensed.” Id. at *5.