Almost everybody is aware of the concept that communications between clients and their attorneys are “privileged,” but the fine lines of that privilege are not often understood. It is important to be aware of the limits of that privilege because the forced disclosure of a communication that the client or the attorney assumed would remain confidential could be not only embarrassing but could have damaging and possibly criminal, consequences.

This was brought into sharp focus recently when the United States Supreme Court heard an argument relating to an order in a criminal investigation compelling a law firm to turn over documents sent to its client that contained both legal and accounting advice. (In re Grand Jury, No. 21-1397.) The government, pointing to the standard followed by the common law in most states, argued that the documents would be privileged ONLY if their “primary purpose” was to convey legal advice. On the other hand, the position of the law firm was that the documents are still privileged and confidential as long as legal advice was a “substantial purpose” of the communication.

Whatever the Supreme Court ultimately decides, comments by several Justices during the oral argument make clear the difficulties involved, on a case-by-case basis, of determining whether a communication—by email, correspondence or document exchange—is for the primary or even a substantial purpose of giving legal advice.

All lawyers, particularly business lawyers, are regularly consulted by clients seeking not only legal advice but advice on a variety of matters well beyond strictly legal matters that relate to how they conduct their businesses, market their products or services, invest their resources and grow their enterprises. Some of these communications may even contain a mix of purposes, including seeking and giving legal advice, but under the most commonly applied existing standard, if legal advice is not the primary purpose of the communication, it will not be privileged and it stands the risk of being discoverable in litigation.

Both clients and attorneys need to stop and think before putting pen to paper or clicking the keyboard, about what the consequences might be if, by subpoena or document discovery, the contents of that communication were no longer confidential and were disclosed to third parties.

The attorney-client privilege is complicated and should never be presumed without a careful analysis. If in doubt, it’s best to consult orally before sending.

Copyright: Stuart B. Newman, 2023