THE IMPORTANCE OF PURPOSE IN AVOIDING UNINTENTIONAL WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE
Just because you are talking to an attorney does not mean that your conversation is protected by the attorney-client privilege. And just because your company has hired outside counsel does not mean that privileged documents you send them remain protected by the privilege either. The Ninth Circuit recently concluded that a company’s disclosure of a privileged memorandum to outside counsel for use in a valuation report resulted in waiver of the company’s attorney-client privilege with respect to that memo. The Ninth Circuit’s opinion underscores that the only information covered by the attorney-client privilege is that which is shared with counsel for the purpose of obtaining legal, not business, advice.
The attorney-client privilege protects from disclosure confidential communications between an attorney and a client that are made for the purpose of obtaining or providing legal advice. The privilege covers communications made in any medium, including email, phone, text or online messenger, but it only covers those communications that meet all of the elements: (i) the communications must actually be confidential (i.e., limited exclusively to the attorney and client); (ii) the communications must be made by or to a client (even if no engagement or retainer letter is signed); and (iii) the communications must be made for the purpose of obtaining legal advice. The privilege belongs to the client, and so the only person who can assert it is the client, or an attorney on the client’s behalf.
Jan-Mar 2021 issue
MoloLamken LLP