Creative Representation | Expert Litigation

Improper Assertion of Attorney-Client Privilege

By Ben Riley*

In litigation cases in the United States, issues commonly arise over assertion of the attorney-client privilege.  Aggressive or unscrupulous parties may seek to hide harmful email communications or admissions behind the attorney-client privilege, but the privilege is not absolute.  The usual claim is that an attorney has some involvement in the communication or is working with another professional on the same project.  Assertions of privilege and withholding of critical documents in these situations may be improper.

Under California and other United States federal and state laws, the assertion of attorney-client privilege must be based on a communication (either orally or in a document) that: (1) is confidential; (2) contains or seeks legal opinion or advice; and (3) is not disclosed to any third party unless that disclosure is “reasonably necessary” to obtain or transmit the legal advice.  See California Evidence Code section 952.

Take an example where Company A is being audited by the federal taxing authority.  Company A hires Accountant B and Lawyer C to advise it in connection with the audit.  There is an attorney-client privilege between Company A and Lawyer C as to confidential legal advice.  But there is no attorney-client privilege between Company A and Accountant B for the accountant’s advice unless Lawyer C is part of the communication and is directing the accounting work.

First, Company A cannot protect non-confidential facts or other information — like meeting times or lunch plans — simply by transmitting it to Lawyer C.  Whether or not it involves an attorney, the communication must be confidential.

Second, the communication must contain or seek legal advice.  If Attorney C is not copied on an email communication between Company A and Accountant B, or where there is only an internal discussion among employees of Company A, it is unlikely that the communication is privileged.  If these communications do not specifically discuss Lawyer C’s advice, they are not privileged.  Moreover, where multiple topics are discussed in one email, communications are privileged only if their “dominant purpose” is to secure legal advice.

Third, where third parties are copied, normally there is no privilege.  If Third-Party D is copied on an email between Company A and Lawyer C, no attorney-client privilege may be asserted unless the discussion in the email is confidential and Third-Party D’s involvement in the email is “reasonably necessary” for the communication of the legal advice.

Finally, people or companies may try to cover-up criminal activities by copying an attorney on the communication.  But the “crime-fraud exception” does not permit assertion of attorney-client privilege if the communication is part of an effort to defraud.

The party asserting that an email or document is protected under the attorney-client privilege must prove the three elements of the privilege claim.  They must also serve a “privilege log” specifically describing each withheld document and why it is privileged.  If the party fails to prove the three elements and/or does not provide a detailed privilege log, the documents must be produced and the claim of attorney-client privilege denied.

Ben Riley is a partner with the San Francisco trial firm of Bartko LLP.  He has tried 30 cases to verdict, with 17 months in trial.  Most recently, Mr. Riley and his team won two massive trust trials with over $1 billion at issue.  Ben has twice been named a California Lawyer of the Year, is ranked among the Top 100 lawyers in California, and is rated by Chambers as a top California lawyer in the fields of intellectual property litigation and private wealth disputes.  Contact Ben at briley@bartkolaw.com.