When Can the Lawyer-Shopper Privilege Be Invoked?

On Jan. 29, 2021, New York Supreme Court Judge Arthur F. Engoron ordered the Trump Organization’s law firm, Morgan, Lewis & Bockius, to turn over documents sought by the New York Attorney General’s Office. The attorney general’s office is seeking these documents in connection with its investigation of the company’s representations concerning its assets.

The January 29 order comes after a Dec. 15, 2020 order directing that an engineer’s documents be produced in the case. There, the attorneys claimed that the report was privileged because attorneys had relied upon it in valuing one of the properties at issue in the investigation.

This time, and after a review in chambers, the court found that the documents now at issue concerned communications “addressing business tasks and decisions, not exchanges soliciting or rendering legal advice.” Additionally, these documents included communications within the law firm discussing public relations matters, which are not legal but related to business issues. Thus, the court again found that no privilege applied and ordered that the requested documents be produced.

Every Communication Is Not Privileged

Given these orders, the question of when the attorney-client privilege applies and when it does not is a relevant and important one. Every communication with an attorney is not automatically privileged and merely copying an attorney on a communication does not invoke the privilege. (See Spectrum Systems Intern. Corp. v. Chemical Bank (N.Y. Ct. App. 1991)).

Rather, a communication (such as emails, correspondence, oral communications, etc.) will only be subject to the attorney-client privilege when it meets certain criteria and is kept confidential.

Importantly, in order to invoke the privilege, the “primary purpose” of the communication must be to seek or render legal advice. A communication that does not seek legal advice or convey information that is reasonably related to a request for legal assistance will not be privileged. As a result, general “[b]usiness advice, unrelated to legal advice, is not protected by the privilege even though conveyed by an attorney to the client,” because it does not and is not intended to provide legal advice. (See In re Vioxx Prods. Liab. Litig. (E.D. La. 2007)).

Mixing Business and Legal Advice

Further, an email that includes an attorney and a non-attorney as recipients may not be privileged if it seeks both business and legal advice. This frequently occurs in the context of in-house counsel communicating with company employees who are not attorneys. In-house attorneys are typically members of a company’s executive or leadership team and as a result, provide both legal and non-legal advice.

Thus, where non-attorneys are in the “To” field of an email that discusses both business and legal advice, the communication may not be privileged. The same is not necessarily true where an attorney is in the “To” field and the non-attorney is simply copied on the email. If the reason for copying the non-attorney was to notify them that legal advice was sought and/or the contents of the legal advice, then the communication will be privileged.

The privilege may also be invoked where a non-attorney is providing information to assist the attorney in rendering legal advice. Further, the absence of an attorney on an otherwise confidential communication will not be fatal to a privilege claim. (See U.S. v. DaVita Inc. (N.D. Ga. 2014)). Rather, the “ultimate touchstone for application of privilege as to [such communications] is whether the communication revealed advice from, or a request for advice made to, an attorney in some fashion.”

Privilege May Not Extend to Attachments

These communications are likely to involve both emails and their attachments. It is important to remember that an email’s privilege does not always extend to its family members (i.e., the attachments). Rather, if the “attachment contains facts and not communications, the Court must evaluate whether the disclosure of the facts would somehow reveal a request for, or the content of, legal advice.” (See Townhouse Rest. of Oviedo Inc. v. NuCO2 LLC (S.D. Fla. June 24, 2020)).

To preserve the attorney-client privilege, the “primary purpose” of communications with attorneys should be made clear and one should state when he/she is seeking legal advice. Also, do not have communications seeking legal advice or rendering legal advice in the presence of—or when—a third-party/non-attorney is present. Finally, corporate employees acting at the advice or direction of in-house counsel should state “at the direction of our general counsel” in their emails.

These practices will, at minimum, ensure that there is a legitimate basis for claiming the attorney-client privilege applies.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Anthony Argiropoulos is a partner in Epstein Becker Green’s Litigation and Health Care & Life Sciences practices and co-chair of the firm’s National Litigation Steering Committee. He represents health care clients, publicly held companies, and other large businesses in high-stakes litigation and dispute avoidance and resolution.

Scheherazade A. Wasty is an associate in the Litigation and Health Care and Life Sciences practices of Epstein Becker Green. She concentrates in commercial litigation involving health care providers that span the health care delivery spectrum.

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