Educate Your Clients About Two Basic Privilege Misperceptions

May 15, 2024

Attorney-client privilege protection depends on a communication’s content — which must be primarily motivated by the client’s request for legal advice.

Many clients and some ill-informed lawyers think that certain steps can “make” something privileged. They can’t. In Estate of M.R. v. Oregon Department of Human Services, the court dispelled one erroneous assumption: “a label or lack of a label is not dispositive with respect to whether a communication is protected by the attorney-client privilege.” Lead Case No. 3:23-cv-00705-B, Cons. Case No. 3:23-cv-00702-SB, 2024 U.S. Dist. LEXIS 64536, at *16-17 (D. Or. Apr. 9, 2024). Ten days later, another court across the country dismissed another common misperception: “it has long been accepted that the mere presence of an attorney does not protect a document or a communication from disclosure.” Estate of LeRoux v. Montgomery Cnty., Case No. 8:220cv000856-AAQ, 2024 U.S. Dist. LEXIS 71544, at *24-25 (D. Md. Apr. 19, 2024).

Sadly, even some sophisticated business clients think that these steps assure privilege protection. We should all educate our clients about these mistaken beliefs — which could have disastrous repercussions.