Attorney-Client Privilege Covers Pre-relationship Materials

• Pages: 9-9
• Date: 01 January 2023
• Author: Nhan T. Ho
• Subject Matter: Civil Law

It is the purpose of a communica-

tion, and not its timing, that deter-

mines whether the attorney-client

privilege applies. A federal district

court held that the privilege extends

to documents prepared by a plainti—

before he retained a lawyer—where

the plainti intended to provide the

documents to the future lawyer to

obtain legal advice. ABA Litigation

Section leaders agree with the court’s

decision to protect the sanctity of the

attorney-client privilege.

In Nelson v. City of Hartford, the

plainti, a retired police ocer, sued

the city (his former employer) for con-

structive discharge in the U.S. District

Court for the District of Connecticut.

The plainti alleged that the city had

subjected him to a hostile work envi-

ronment in retaliation for his support

of another employee’s discrimination

complaints against the city.

During discovery, the city learned

that the plainti contemporane-

ously recorded the events alleged in

the lawsuit in a diary before retain-

ing an attorney. Once represented by

counsel, the plainti reorganized and

revised his diary and provided it to

his lawyer to help explain his need for

legal representation. The only avail-

able version of the plainti’s diary

was the one he edited and modif‌ied

specif‌ically to be provided to counsel.

The city moved to compel the pro-

duction of the diary, and the plainti

responded that it was covered by the

attorney-client privilege.

The court agreed with the plain-

ti. The court was not interested in

whether the plainti created the diary

before or after he had retained coun-

sel, but whether he prepared it to

communicate with counsel in conf‌i-

dence. Had the diary been created for

the plainti’s personal use, it would

not have been privileged as an attor-

ney-client communication. But here,

the plainti’s purpose for contempo-

raneously recording the notes was

Attorney-Client Privilege Covers

Pre-relationship Materials

to provide them to counsel to solicit

legal advice. Thus, the court denied

the city’s motion to compel. However,

the court said that the facts contained

in the diary were not protected, and

the city was still entitled to ask the

plainti about the facts underlying his

allegation.

Litigation Section leaders agree

that Nelson was correctly decided.

“There is no dierence between telling

the lawyer what happened and writing

down what happened and turning the

notes over to the lawyer; they are both

communications to get legal advice,”

notes John M. Barkett, cochair of the

Section’s Ethics & Professionalism

Committee. “As the judge found that

the notes were prepared to be given

to the lawyer to obtain legal advice,

they were correctly found to be privi-

leged,” he adds.

“Merely passing notes along to a

lawyer is not what made the ‘diary’

at issue privileged,” explains John P.

Hutchins, cochair of the Section’s Trial

Practice Committee. “Rather, it is that

the diary was prepared by the plainti

in anticipation of retaining counsel,

with the idea that the future client

would pass the notes on to his coun-

sel, whenever he retained a lawyer, in

order to aid in seeking advice,” he con-

tinues. “It is not correct to say that the

notes in Nelson were ‘otherwise not

privileged’ and they somehow magi-

cally became privileged at the time

they were passed to counsel,” adds

Hutchins.

In the same vein, Section lead-

ers do not f‌ind it relevant that the

only available version of the notes

was the one revised and given to

the lawyer. “The result should be the

same as long as the purpose of the

notes was to retain legal advice; once

that is found to be the reason behind

the creation of the notes, they are

privileged,” states Barkett. Likewise,

Hutchins thinks that “the court’s com-

ments about the previous versions of

By Nhan T. Ho, Litigation News Contributing Editor

the diary are mostly dicta, because

even if the previous versions existed,

the court would likely have considered

them privileged as well.”

“The attorney-client privilege

should not be undermined, especially

in this case where the city can dis-

cover the facts underlying this claim,”

opines Barkett. In other words, the city

did not need access to the notes to

investigate the facts. The plainti was

still obligated to disclose witnesses who

had knowledge about the case and the

relevant documents that may be used

to support the claims, under Federal

Rule of Civil Procedure 26(a)(1)’s initial

disclosure requirements. “All the infor-

mation would come out through the

plainti’s deposition if defense coun-

sel asks the relevant questions about

the facts underlying plainti’s allega-

tions,” explains Barkett.

However, if the plainti’s testi-

mony diers from what he told his

lawyer through the notes and the

information was material, the plain-

ti’s counsel would have an ethical

duty to take reasonable remedial mea-

sures under Model Rule of Professional

Conduct 3.3, Barkett notes.

Digital vers ions of all Ethics stori es, including

links to resour ces and authorities , are available

at http://bit.ly/LN-ethics.

WINTER 202 3 • VOL. 48 NO. 2

9 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORLD

Published in Litigation News Volume 48, Number 2, Winter 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or

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