Two Federal Courts Assess a Prospective Client’s Privilege Protection on the Same Day

October 25, 2023

Communications between a lawyer and a prospective client can involve ethics (confidentiality and conflicts) issues, as well as privilege protection issues. Not surprisingly, the availability of privilege protection depends on the context.

In Glover v. EQT Corp., Civ. A. No. 5:19CV223, 2023 U.S. Dist. LEXIS 147435, at *18 (N.D. W. Va. Aug. 14, 2023), the court held that a would-be client “appear[ed] to be actively seeking representation regarding a perceived royalty dispute with” defendant, followed by the would-be lawyer’s “requesting additional information and attempting to coordinate meetings to discuss representation.” The court understandably extended privilege protection, although the client did not ultimately retain that lawyer. On the same day, another federal court addressed privilege protection for the EEOC’s four thousand solicitation letters sent to current and former employees of a company accused of failing to provide reasonable accommodations under federal law. In EEOC v. Scottsdale Healthcare Hospitals, No. CV-20-01894-PHX-MTL, 2023 U.S. Dist. LEXIS 141769, at *9 (D. Ariz. Aug. 14, 2023), the court found privilege protection for communications to and from employees who responded to the EEOC’s solicitation letter, but that “attorney-client privilege does not cover the EEOC’s solicitation letters that were not responded to, or those that were responded to, but the response declined the invitation to speak to an EEOC attorney.” On the other hand, the court found work product protection for the identity of the letters’ recipients.

Lawyers considering either privilege or work product protection for their communications with would-be clients sometimes face difficult privilege issues in addition to the ethics considerations.