Sloppy Client Identification Practices Doom a Privilege Claim

August 5, 2020

Lawyers should always clearly and consistently identify their “client” if there is any question about whom they represent – because every ethical duty and privilege protection ownership flows from that relationship. Lawyers representing entities must be especially diligent.

In JAE Properties, Inc. v. AMTAX Holdings 2001-XX, LLC, No. 19cv2075-JAH-LL, 2020 U.S. Dist. LEXIS 80797 (S.D. Cal. May 7, 2020), Investor Limited Partner Amtax sought communications between co-General Partner JAE and lawyer Hartman. Hartman claimed that he only represented JAE – and not the limited partnership itself. But the court noted that “JAE has produced documents in this litigation where Hartman identified himself in writing in at least three instances as legal counsel for both the Partnership and the General Partners (including JAE).” Id. at *7. Hartman admitted representing the limited partnership “in certain limited capacities,” but argued that language mentioning a more general representation was merely “boilerplate language” resulting from “my unintentional failure to remove such language left over from prior correspondence” and “essentially an inadvertent oversight on my behalf.” Id. at *7-8 (internal citations omitted). The court rejected Hartman’s excuses – concluding that “it was reasonable for [Investor Limited Partner] Amtax to believe that Hartman would protect Amtax’s individual interests as a member of the Partnership.” Id. at *24. The court thus required General Partner JAE and Hartman to produce their otherwise privileged communications.

Lawyers representing entities such as partnerships, limited partnerships and corporations should accurately, clearly and consistently identify their “client.”