My work life revolves around email. Because of the size of our company, and the geographical locations of my clients, I spend a majority of my day on email. Like many of you, I have a disclaimer below my signature stating that the correspondence is attorney-client privileged, and so on. But is it really? Many times, the answer is no. I know enough to use the disclaimer in an abundance of caution, but my clients often have no idea whether what they send across email is indeed privileged.
Like Susan Moon, I am often referred to as “council.” That’s fine, it doesn’t really bother me, and is rather innocuous. Sometimes however, a client will take it upon themselves to write in bold, ATTORNEY-CLIENT PRIVILEGED, within the subject line. And that does bother me. Folks with just enough legal knowledge to be dangerous, are often just that — dangerous. Now, the email may indeed be seeking my advice, or concern a legal matter within that client’s region, but the client should not assume that to be the case. The misunderstanding of the privilege could lead to problems in the future, say, in a discovery period….
If you have any experience at all as a young attorney doing document review, you know the drill of reviewing countless documents, marking them according to some agreed upon codes, and setting aside those that claim attorney-client privilege or attorney work product. Upon later review, many of those documents fail to meet the standards for either claimed privilege. They were so marked simply because one of the email recipients happened to be an attorney.
The basic rules are these: if drafted in contemplation or preparation for a litigation, a document can be classified as attorney work product; if written to or from an attorney seeking advice on a legal matter or issue, a document may be classified as attorney-client privileged. As I said, these are the basic rules. Exceptions and qualifications abound, and can trip up even experienced attorneys. And this doesn’t contemplate the whims of a particular judge, who might very well order the production of a slew of documents that are properly claimed as protected.
It is all too easy for in-house counsel to assume that everything they do is subject to one of the privileges. However, courts have a long history of whittling away at what was once an almost impenetrable practice of corporate counsel — stamping every document as privileged, thereby protecting anything so deemed to be safe from prying eyes. The trend recently has been to pare the privilege to the minimum.
For example, an email from a client to an attorney discussing the ramifications of a measure to the profit margin would arguably be excluded from the privilege. The attorney is not being asked to opine on a legal issue, but a business question. Likewise, an email from an attorney requesting a pricing formula would also likely be excluded. However, when the pricing formula and ramifications margin are later used as part of a memorandum as to why a particular business tack should or should not be taken, that document would likely be protected.
A client requesting approval to remedy a customer issue, while perhaps privileged, would not rise to the work-product standard, as there is no mention of potential litigation. However, the same client requesting approval to remedy a customer issue in order to avoid litigation could well rise to the necessary standard.
Privilege is one of those areas in the law where conservatism should be the norm for your practice. If you think a document may be privileged, then go ahead and label it as such. The courts treat these issues on a case by case basis, and it is almost impossible to derive a formula for what will and what will not be qualified under the privilege. It is far easier to have claimed privilege, and have the claim reversed by a court, than to fail to preserve the sanctity of a document, and have it fall into the hands of the enemy when document production is complete. However, beware the practice of over-claiming privilege, as a judge frustrated by intransigent discovery practices could throw up her hands and make you turn over the kitchen sink.
After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as an in-house lawyer at a major technology company. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at [email protected].