SUMMER 202 0 TODAY’S GENER AL COUNSEL
PRIVILEGE PLACE
No Communication, No Privilege By Todd Presnell
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eorge Bernard Shaw once remarked that the “single biggest problem in communication is the illusion that it has taken place.” And so it is with the attorney–client privilege. Of the corporate attorney–client privilege’s primary elements, most focus on confidentiality and distinguishing between business and legal advice. Corporate counsel should not forget, however, that the privilege protects only communications. And, unfortunately, some lawyers lose privilege arguments because of an illusion that a communication has taken place. The Merriam-Webster dictionary defines “communicate” as “to convey knowledge or information.” It similarly defines “communication” as “a process by which information is exchanged between individuals.” The difference, of course, is that a communication is not information but the conveyance of information. The Model Rules of Professional Responsibility recognize a comparable distinction. Rule 1.6 obligates lawyers to keep their clients’ information confidential. The Rule’s comments identify the attorney–client privilege as a “related body of law” and clarify that the confidentiality obligation applies “not only
Todd Presnell is a trial lawyer in Bradley’s Nashville office. He is the creator and author of the legal blog Presnell on Privileges, presnellonprivileges. com, and provides internal investigation and privilege consulting services to in-house legal departments. tpresnell@bradley.com
to matters communicated in confidence but also to all information relating to the representation.” Despite the definition and ethical rule distinctions, many lawyers conflate the two and assume that the privilege protects all client-related information. Not so. The communication conundrum has historical roots. An issue that lingered for decades, but now appears settled, was whether the attorney–client privilege protected lawyer-to-client communications in addition to client-to-lawyer communications. In the early 1800s, many states codified the developing common law attorney-client privilege in a manner that limited its scope to client-to-lawyer communications while remaining silent on lawyer-to-client communications. For example, in 1821 Tennessee, likely the first state in the Union to codify the privilege, enacted a statute (signed
by future President James K. Polk as the Clerk of the Senate) prohibiting lawyers from disclosing “any communication made to the attorney.” The Volunteer State did not statutorily prohibit disclosure of a lawyer’s communications to a client. Yet by the mid-1800s, Tennessee courts began interpreting the statutory privilege to include derivative protections. Under this derivative concept, the privilege covers an attorney’s communications that would directly or indirectly reveal the client’s prior communications. The attorney-to-client communication issue is not an historical footnote. It is only within the last decade that one state, Pennsylvania, conclusively applied the privilege to attorney-to-client communications. In 2011, the Pennsylvania Supreme Court analyzed whether its privilege statute protected a lawyer’s communications with the client. The
