The attorney-client privilege protects communications between attorneys and their clients when those communications are for the express purposes of giving, or receiving, legal advice. However, not all communications between an attorney and his/her client are held to be privileged. In fact, even those conversations that are deemed privileged can see that classification quickly removed based on the actions of a client. As attorneys are called upon to wear multiple hats when representing corporate clients, the line between trusted business advisor and attorney often gets blurred.
This reality has not gone unnoticed by judges. Recently, the 9th Circuit addressed this very issue. In the case of In re Grand Jury, 23 F.4th 1088 (9thCir. 2021), the Court acknowledged that “attorneys often wear dual hats, serving as both a lawyer and a trusted business advisor.” It is this duality that creates confusion in deciding which communications are privileged and which communications were unprivileged business advice. In this case, the Court was called upon to decide whether advice the company’s attorneys gave it fell under “legal advice” or was the advice merely a part of greater communications regarding business decisions.
When addressing the attorney-client privilege in dual-purpose communications, most courts follow one of two different tests in assessing whether to apply the attorney-client privilege protection. These two tests are the ‘Primary Purpose’ test, and the ‘Because Of’ test.
The ‘primary purpose’ test focuses on whether the communication is to give or receive legal advice as opposed to business advice. The ‘primary purpose’ test is significantly narrower than the ‘because of’ test which only looks for a causal connection. Additionally, the ‘because of’ test traditionally applies in the work-product context and instead looks at the totality of the circumstances, applying when the document in question was created because of anticipated litigation, and would not have been produce in substantially similar form but for the prospect of litigation. Applying the ‘because of’ test to attorney-client privilege, the test might examine whether the dual-purpose communication was made ‘because of’ the need to give or receive legal advice.
In the business world, corporate emails often involve multiple people with long chains of multiple communications and attachments. Clients often believe that if they simply include their counsel in on the email chain, this inclusion affords them the attorney-client privilege protection. However, funneling non-privileged information and documents through counsel is not a sufficient basis for assuming a primary legal purpose. In fact, many courts have reasoned that copying a lawyer on an email as a secondary recipient clearly indicates that the primary purpose of the communication was not to obtain legal advice.
To date, the U.S. Supreme Court has refused to rule in a manner that once and for all clearly delineates when string email communications or chains containing a company’s attorney will be afforded full attorney-client privilege protections. Until then, companies need to implement “best practices” for communications that have legal implications or require input from counsel.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2023 Law Offices of Pullano & Farrow PLLC