Two Moms, Two Cases and Two Different Results: Part I

September 1, 2021

Somewhat counter-intuitively, attorney client privilege protection is so fragile that even a family member often falls outside privilege protection (unless that family member was necessary to facilitate communications between the client and his or her lawyer). But work product protection is more robust, so most family members are inside that protection.

In Doe v. Wesleyan University, Civ. No. 3:19-cv-01519 (JBA), 2021 U.S. Dist. LEXIS 114871 (D. Conn. June 21, 2021), a former Wesleyan student sued the University after it expelled her for cheating. Plaintiff “communicated with her mother within twenty-four hours of the emergence of the cheating allegations,” and “continued to communicate with her mother throughout the Honor Board proceedings.” Id. at *5. The plaintiff claimed privilege protection for her communications, arguing that her mom was “acting as [her] agent.” Id. at *3. The court acknowledged that “[a]s a legal matter, it is true that a client’s communications with an agent can be protected by the privilege when the communication was necessary to facilitate or clarify communications between the client and the attorney.” Id. at *7. But the court noted that “[t]he plaintiff is, and was at all times relevant to this case, an adult with communication skills sufficient to secure admission to one of America’s most selective universities.” Id. at *9. The court found the privilege inapplicable. And beyond that, the court bluntly warned that “[a]ny claim that [plaintiff] could not communicate effectively without her mother’s assistance will be carefully scrutinized, and may lead to the imposition of sanctions.” Id.

The court’s unsurprising opinion is perhaps more important for what it does not discuss. The separate and more robust work product doctrine product almost certainly would have protected plaintiff’s communication with her mom. But the court did not address possible work product protection. One cannot help but wonder if plaintiff’s lawyer forgot to raise it. Next week’s Privilege Point will describe another case decided eight days later, which also addressed protections for communications between a plaintiff and her mom.