Federal Court Applies Privilege Axioms That Many Clients Misunderstand

May 30, 2018

Some clients who have not been adequately advised by their lawyers think that writing “privileged” on a document makes it so, or that copying a lawyer will assure privilege protection.  These and other similar misunderstandings can doom protection for damaging documents whose authors have jumped to conclusions, needlessly self-criticized or engaged in harmful hyperbole – because they erroneously thought the privilege would protect those documents’ from adversaries’ access.

In Erickson v. Hocking Technical College, Case No. 2:17-cv-360, 2018 U.S. Dist. LEXIS 50075 (S.D. Ohio Mar. 27, 2018), plaintiff sought to depose a lawyer who had acted as defendant’s General Counsel, HR Director and Risk Management Vice President.  Among other things, defendant claimed that the privilege protected communications during meetings that the lawyer attended.  The court rejected defendant’s privilege claim, noting that the privilege did not protect the communications simply because the lawyer “subjectively believed that she was at the meeting in her capacity as counsel to gather information.” Id. at *7.  The court bluntly concluded that “the record contains no evidence reflecting that [the lawyer] was asked to attend in her capacity as a legal advisor rather than in her [other capacities]” (id. at *9); or that she provided or “was asked to provide legal advice” at the key meeting.  Id. at *10.  The court also held that a meeting participant’s “Attorney-Client Privileged Information” label on an email “drafted three days after the at-issue meeting . . . does not operate to retroactively render the earlier, otherwise-unprivileged discussions subject to the attorney-client privilege.”  Id. at *6, *8.

As with other widely held but erroneous misconceptions, lawyers should advise their clients that asking a lawyer to participate in meetings does not assure privilege protection.  If such lawyers provide legal advice, all the related documents should clearly reflect that – in their substantive content, not merely with a header or label.