Does the Attorney-Client Privilege Protect a Lawyer’s Retention Date?

September 27, 2017

Content is king in the privilege world, in contrast to the work product protection – which largely depends on context.  For this reason, the privilege rarely if ever protects the facts and circumstances of (1) the attorney-client relationship, or (2) attorney-client communications.

In Wise v. Southern Tier Express, Inc., Case No. 2:15-cv-01219-APG-PAL, 2017 U.S. Dist. LEXIS 106321, at *2 (D. Nev. July 10, 2017), plaintiff Wise contended “that the date he hired his attorney necessarily reveals his communication to the lawyer that he wanted to hire him.”  The court rejected his intuitively attractive argument – noting that “[i]dentifying the date Wise contacted or hired his attorney discloses an act, not the substance of a confidential communication.”  Id.

With a few exceptions, the attorney-client privilege does not protect such background information as the clients’ identities, the circumstances of lawyers’ retention, what they billed, where lawyers and clients met, the duration of their conversations, etc.