Chapter 13 Content: Legal Advice Requirement

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

Chapter 13

CONTENT: LEGAL ADVICE REQUIREMENT

13.1 INTRODUCTION

Despite common misperceptions by many clients and even some lawyers, the attorney-client privilege does not automatically protect communications simply because a lawyer participated in them. The privilege only protects communications primarily motivated by a client's request for legal advice from a lawyer.

13.2 COMMON MISPERCEPTIONS ABOUT THE PRIVILEGE

Many clients misperceive the privilege's applicability.

• Examples include labeling a document "privileged" assures the protection; the privilege automatically protects communications to or from a client; copying a lawyer on a document assures protection; a lawyer's participation in a meeting extends privilege protection to the meeting's communications.

Even some lawyers have misperceptions—which the case law also belies.

• Examples include: the privilege extends to a lawyer's files; the privilege protects a law firm's internal communications.

13.3 COMMUNICATIONS DESERVING PRIVILEGE PROTECTION

The privilege can protect two types of communications from clients to lawyers and two types of communications from lawyers to clients.

• Clients relay facts to lawyers, and they ask for legal advice about those facts.

• Lawyers request facts, and provide legal advice about those facts.

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13.4 BASIC PRINCIPLES

Some basic privilege principles apply regardless of communications' direction (client-to-lawyer or lawyer-to-client). [13.401]

The privilege does not automatically protect all communications to or from lawyers. [13.402]

The privilege protects only communications motivated by clients' request for legal advice. [13.403]

The privilege usually does not extend to non-substantive logistical communications. [13.404]

• These include communications about setting up meetings, travel plans, etc.

• Courts disagree about the work product doctrine's application to such

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