No Communication, No Privilege

PRIVILEGE PLACE

No Communication, No Privilege

By Todd Presnell

George 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 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 statute, first enacted in 1881, mimicked Tennessee’s privilege statutes (and that of other states) by preventing disclosure of client-to-attorney confidential communications, but remained silent on lawyerto-client communications. The Supreme Court eschewed the limiting derivative approach and, despite the statute’s plain language, held that the privilege operates in a “two-way fashion” to protect attorney-to-client communications, regardless of whether it discloses client communications.

Some states model their evidence rules after either the 1974 or the 1999 version of the Uniform Rules of Evidence. These rules contain an attorney–client privilege rule that protects communications between a client and her or his attorney rather than focusing on whether the client or the attorney initiated the communication. The Restatement (Third) of the Law Governing Lawyers § 69 defines a communication as an expression that a client or a lawyer undertakes to convey information. The Restatement specifically rejects the derivative approach followed by some states because determining whether a lawyer’s communication discloses the client’s prior communications is difficult. Some federal courts follow the derivative approach. Others favor the Restatement’s and Uniform Rules’ broader approach.

The communication enigma did not subside after the decades long, one-waystreet versus two-way-street privilege debate. Courts also scrutinize whether the item for which a party seeks privilege protection was a communication rather than simply information. In other words, did the client (or the lawyer) convey the putatively privileged material to the other?

An in-house legal department confronted this communication hurdle in an Arizona lawsuit. In this environmental liability case, the defendant company’s legal department, which at one time totaled 35 attorneys, found agreement and reimbursement submission forms in its files that were responsive to the plaintiff’s discovery requests. The agreement and forms contained handwritten notations in the margins. The company produced the documents but redacted the notations, claiming that legal department lawyers wrote the notations and, therefore, the privilege protected them from compelled disclosure.

The plaintiff challenged the privilege assertion over the notations. The defendant company’s assistant general counsel explained that he found these documents in the legal department’s file room, which he claimed was called “the Vault,” apparently due to its indestructible confidentiality barrier. And because he located the documents in the Vault, it was clear that an in-house attorney wrote her or his thoughts on them. Yet, the assistant general counsel could not determine which lawyer created the notations, likely because the author did not identify herself or himself and the legal department had 35 lawyers.

The court gave the defendant company the benefit of the doubt that an in-house lawyer created the notations, but nevertheless rejected the privilege assertion. Noting that the attorney–client privilege “protects communications,” the court found that the assistant general counsel failed to provide evidence that “the notations were ever communicated to anyone.” And without evidence that information (here, a lawyer’s notations on documents) was communicated (meaning conveyed), the privilege did not apply.

A similar communication breakdown — and loss of privilege — occurred in a deposition-preparation setting. In a Pennsylvania professional negligence case against an anesthesia group and a certified registered nurse anesthetist (CRNA), the CRNA reviewed the plaintiff patient’s medical chart to prepare for his upcoming deposition. During that self-preparation process, he made several notations on the chart.

At his deposition, the CRNA admitted that he reviewed the medical chart to prepare for his deposition and disclosed that he made notes on the chart. When the inquiring lawyer later requested production of those notes, the defense team claimed that the attorney–client privilege protected them from disclosure. The Pennsylvania court reminded the parties that an actual communication “is the very essence of the attorney–client privilege.” And here, the CRNA presented no evidence that he transmitted these notes to his lawyer. Nor was there any evidence that his notes reflected information that his lawyer conveyed to him, or that his lawyer directed him to create those notes. Without a transmission or a conveyance of those notes, the privilege did not apply.

A question that immediately arises is whether, regardless of the privilege’s application, the work-product doctrine protects the Arizona in-house lawyer’s written comments on a contract or the Pennsylvania CRNA’s medical-chart annotations. In the Arizona case, it does not appear that the unknown lawyer created those notes in anticipation of litigation (a requirement) and the company did not assert the doctrine. In the Pennsylvania case, the court held that, under that state’s law, the work-product doctrine belongs to the attorney, not the client, and therefore protects only the attorney’s mental impressions and opinions. And because the CRNA’s notes did not reflect his lawyer’s work product, the doctrine did not preclude their disclosure.

If “facts are stubborn things,” as John Adams posited, then communications are delicate things. Although the privilege certainly protects a client’s communication to his or her lawyer, the reverse has not always been true, and some states still do not apply a blanket protection. Written notes, whether on contracts or simply in a journal, do not become privileged communications until conveyed to a client or lawyer. The work-product doctrine may provide protection, but that too may be elusive. So, let’s proactively create a communication, and not fall under the illusion that one has taken place.

Todd Presnell is a trial lawyer in Bradley’sNashville 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