Chapter 14 Analyzing the Lawyer’s Role

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

Chapter 14

ANALYZING THE LAWYER'S ROLE

14.1 INTRODUCTION

Attorney-client privilege protection depends on lawyer participants acting as legal advisors rather than playing some other nonlegal role. Even with lawyers acting as legal advisors, the privilege only applies to their communications relating to such legal advice. ¹

14.2 LAWYER'S ROLE IS NOT DISPOSITIVE

Several factors are not dispositive in undertaking this analysis. [14.201]

• Lawyers' participation in a communication does not automatically assure privilege protection. [14.202]

• The title lawyers use is likewise not dispositive. [14.203]

Courts usually do not extend privilege protection to communications with lawyers performing services that nonlawyers could perform. [14.204]

14.3 LAWYERS INVOLVED IN INVESTIGATIONS

Many cases focus on lawyers' involvement in investigations, tax matters, and patent issues. [14.301]

Courts disagree about whether the privilege extends to communications with lawyers undertaking investigations. [14.302]

• Some courts protect such communications—explaining that lawyers engaged in such investigations necessarily bring to bear their lawyer skills.

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• Some courts find that such lawyers are simply gathering historical facts, and therefore do not protect their communications.

• Corporations relying on the fact of such communications might impliedly waive privilege protection. ²

Most courts hold that the privilege does not protect communications to and from lawyers simply filling out clients' tax returns. [14.303]

• However, the privilege usually extends to communications with lawyers providing legal advice while preparing tax returns.

Some courts previously expressed doubts about privilege protection for communications to and from lawyers assisting in patent prosecutions, but the trend favors extending privilege protection to such communications. [14.304]

14.4 LAWYERS INVOLVED IN OTHER MATTERS

Courts have focused on privilege protection for communications to and from lawyers involved in other tasks. [14.401]

Lawyers employed by United States accounting firms cannot provide legal advice to such firms' clients, which usually makes privilege protection unavailable. This contrasts with most European countries' rules. [14.402]

The privilege normally does not extend to lawyers primarily playing a lobbying/public relations role. [14.403]

Lawyers playing other nonlegal roles face the same general principle—which usually precludes privilege...