Chapter 11 Unprotected Background Information

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 11

UNPROTECTED BACKGROUND INFORMATION

11.1 INTRODUCTION

Because attorney-client privilege protection depends on a communication's content, the privilege normally does not protect the logistical details of an attorney-client relationship or communication.

11.2 COMMUNICATIONS ABOUT BACKGROUND INFORMATION

The normal absence of privilege protection for background logistical details parallels the usual lack of protection for historical facts. ¹

However, the privilege normally does not protect communications about background logistical details, unlike the privilege's usual applicability to communications about historical facts. This is because the former type of communication rarely if ever involves a client's request for legal advice, while the latter frequently do.

11.3 FACT OF THE REPRESENTATION

In most situations, the privilege does not protect the fact of an attorney-client relationship or a client's identity. [11.301]

Most courts do not protect basic logistical details about an attorney-client relationship. [11.302]

• Examples include date of a client referral; fact of the relationship; timing of a lawyer's employment; factual circumstances surrounding the attorney-client relationship; scope and nature of employment; length of time the lawyer represented the client; fact of the lawyer's withdrawal; identity of a non-client who retained and paid a lawyer; fact that the client has contacted the lawyer.

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The privilege usually does not protect a client's identity. [11.303]

• In certain very limited circumstances, the privilege can protect a client's identity if its disclosure would somehow reveal a privileged communication's substance, or implicate the client in some criminal conduct (called the "last link" rule).

The privilege usually does not protect other facts about clients. [11.304]

• Examples include client's whereabouts; client's address; client's trust account held by a lawyer.

The privilege usually does not protect retainer agreements. [11.305]

• A portion of a retainer agreement might deserve protection if it specifically describes what the client has requested the lawyer to do, or what the lawyer proposes to do.

11.4 GENERAL SUBJECT MATTER OF THE REPRESENTATION

The privilege normally does not protect the general subject matter of a representation. [11.401]

The privilege usually does not extend to a general description of why the client hired a lawyer. [11.402]

• Examples include purposes for which an attorney was retained; internal law firm documents relating to conflicts; fact

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