The attorney-client privilege is a long-standing and well-established principle that protects certain communication between client and attorney from disclosure. With the increased use of email, clients may often copy their counsel on messages even when they are not seeking legal advice, particularly if a company has in-house or general counsel. Clients cannot, however, transform such communication into “privileged” communication simply by copying their attorney.
As a general rule, only communication between a client and his or her attorney for purposes of obtaining legal advice is privileged. The somewhat complicated role of in-house counsel, however, may create confusion as to what communication with in-house counsel is privileged. In particular, if in-house counsel has regular business duties in addition to serving as counsel, communication related to typical business duties is not protected by the attorney-client privilege. This is the reasoning underlying the decision reached by many courts that copying an attorney on otherwise non-privileged communication does not transform the communication into a privileged communication.
For example, the U.S. District Court for the Southern District of Texas ordered a company to produce certain emails between its senior managers, even though the company’s in-house counsel was copied on the emails. Sand Storage, LLC v. Trican Well Serv., L.P., No. 14 C 3012, 2015 U.S. Dist. LEXIS 56417 (S.D. Tex. April 30, 2015). The court concluded that because the messages were not sent for the purpose of obtaining or providing legal services, the messages were not protected. The court also noted that an attorney does not necessarily have to be the sender or primary recipient in order for the communication to be privileged, but to be protected, the communication must be for the purpose of providing legal services.
The U.S. District Court for the Eastern District of Pennsylvania similarly has found that several emails between non-attorney employees, copied to an attorney, were not privileged and not protected from disclosure because the emails did not contain requests for legal advice. In re Avandia Mktg., No. 07-md-01871, 2009 U.S. Dist. LEXIS 113562 (E.D. Pa. Dec. 7, 2009).
Likewise, in Hamdan v. Indiana University Health North, LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097 (S.D. Ind. June 24, 2014), the Southern District of Indiana reviewed several email chains to determine whether they were subject to disclosure. The court found that an email chain between supervisors and human resources personnel discussing a former employee’s behavior was not protected, even though the employer’s in-house counsel was copied on the email. The court reasoned that the email was neither addressed to the attorney nor sent directly to the attorney, the email exchange did not include mental impressions of the attorney, and the sender of the email was not seeking legal advice. Therefore, the attorney-client privilege did not protect the communication.
While it may be necessary to keep a company’s counsel informed of certain business issues, it is important to remember that not every communication to an attorney is protected by the attorney-client privilege. In order for a communication to be protected from disclosure, it must be between a client and the client’s attorney for the purpose of seeking legal advice. When questions arise, McNees Wallace & Nurick’s team of experienced litigators can assist in determining whether communication is protected by the attorney-client privilege or work-product doctrine.
