Can Non-Practicing Lawyers Ever Deserve Privilege Protection?

June 10, 2020

Attorney-client privilege protection normally involves a client and a lawyer. Must the “lawyer” side of that dialogue always be a fully authorized lawyer?

In Charlestown Capital Advisors, LLC v. Acero Junction, Inc., the Southern District of New York (Magistrate Judge Moses) explained that the privilege’s “first element — the existence of an attorney-client relationship — ordinarily requires, at a minimum, that the attorney be licensed to provide legal services to the client.” No. 18-CV-4437 (JGK) (BCM), 2020 U.S. Dist. LEXIS 26565, at *8-9 (S.D.N.Y. Feb. 14, 2020), The court then acknowledged a slight exception — if the client (including a corporate client) reasonably but mistakenly believed that a person was licensed to practice law. The court ultimately rejected privilege protection for communications to and from a 2003 Columbia Law School graduate who was admitted to the New York Bar but who “never practiced law.” Id. at *12. The court reached the same conclusion about a 1981 University at Buffalo Law School graduate who once practiced law — but who “has been employed for at least 25 years in a variety of business roles” (and whose license had been suspended since 1999 for failing to complete required CLE courses). Id. at *20. Not surprisingly, the court also reviewed the communications’ content in concluding that they did not deserve privilege protection.

Corporate executives might erroneously believe that a one-time lawyer can continue providing protected privileged advice. But their actual authorized lawyers should warn them otherwise.