Rare Opinion Extends Privilege Protection to Implicit Request for Legal Advice

November 15, 2023

Overworked judges assessing possible privilege protection for the increasing volume of often-cryptic emails withheld from production understandably look for a client’s explicit request for legal advice from a lawyer. Occasionally a judge will extend privilege protection without such an explicit request.

In Rawlings v. Marcum, Civ. A. No. 1:22-CV-00001-GNS-HBB, 2023 U.S. Dist. LEXIS 149086 (W.D. Ky. Aug. 24, 2023), the court reviewed emails about an inmate’s death. The court noted that a licensed practical nurse’s reports went to the detention center’s general counsel and others who “all held positions within the corporation relevant to the investigation and assessment of liability.” Id. at *14. The court helpfully explained that “[t]he request for advice need not be express, and communications intended to keep the attorney advised of continued developments, with an implied request for legal advice thereon . . . may also be protected.” Id. at *12. The court may have been influenced by factors it relied on in also extending work product protection — such as the detention center’s inmate population “tends to be extremely litigious.” Id. at *15.

Despite this helpful acknowledgment that the privilege can protect implicit requests for legal advice, wise lawyers train their corporate clients’ employees to be explicit. For example, rather than sending a counterparty’s proposed contract to the company’s lawyer with an “FYI,” employees should be educated to send it with an email such as this: “I have been asked to sign this — please let me know if it sufficiently protects the company’s rights.”