"Is This Privileged?"

Stephen Gillers, Regulation of Lawyers
"Is This Privileged?"

Question 1

Which communications are privileged?

First we’d need to establish if attorney-client privilege is appropriate here. I think a

fairly strong case can be made, considering Harold choose to call his Lawyer friend in

the middle of the night, and specifically differentiates between his duty to G-d, and

“whatever else,” which can be clearly construed as his earthly duty to society. He

does seem to be seeking legal advice, and wants to become a client.

Are they privileged as attorney-client communications, or attorney work-product?

This phone call, once it has been established that Harold was in fact seeking legal

advice, and was looking to become a client, is almost entirely Attorney Client

Communications, and not work-product. The Work Product doctrine looks to protect

the physical and non-physical product of preparing for trial; and while Harold does

make reference to “making things right” with both G-d and Man, a blurted midnight

ramble is a far cry from the work-product associated with trail preparation.

Question 2

The email sent by the VP is privileged attorney-client communication as the VP of Marketing is a representative of the client, Lucky Strike, has communicated this to the lawyer representing Lucky Strike. However, this likely falls into the crime-fraud exception to the privilege. Under this exception, which is outlined in proposed Rule 503 of the Federal Rules of Evidence, communications between the client and attorney are not privileged when the client has consulted the lawyer in order to further a crime or fraud. It does not matter whether the crime/fraud is accomplished or if the lawyer is unaware of the client’s purpose and does nothing to advance it. Here, it is a crime to target cigarette advertising to children and this communication to the lawyer may be considered to be in furtherance of that crime.

The document that was attached to the email is likely not a privileged communication, however, as it was prepared by an independent research company and is probably published in a report available to the public (although it is unclear from the facts). 

Question 3

In this scenario, the communication in question, an email from a CFO to his in-house counsel (with a cc to an outside accounting firm), simply asks the counsel whether there is anything the company needs to do as they consider acquiring another company and whether there are any antitrust issues that they should be aware of. Such a letter does not constitute privileged communication within the meaning of MR 1.6.

The email itself was sent not only to in-house counsel but also to a third party accounting firm.  Including the outside accounting firm in the email likely acts as an implicit waiver of confidentiality, as the client in this scenario willingly and intentionally revealed the contents of the email to a third party, and such a revelation can waive the protection of attorney-client privilege. Additionally, it is unlikely that courts would find that the relationship between the in-house counsel and the CFO to constitute the sort of professional attorney-client relationship that triggers attorney-client privilege. Courts have found that when in-house counsel is providing “business advice” or offering counsel with regard to the potential legal ramifications of a proposed business plan, then those communications are not protected by privilege. See Georgia-Pacific Corp. v. GAF Roofing Manufacturing Corp., 1996 WL 29392 (S.D.N.Y. 1996); Costco Wholesale Corp. v. Superior Court, 219 P.3d 736 (Cal. 2009).

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