Chapter 15 Business and Other Nonlegal Advice

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

Chapter 15

BUSINESS AND OTHER NONLEGAL ADVICE

15.1 INTRODUCTION

Courts must sometimes analyze specific communications' content (rather than the participating lawyer's overall role) in determining possible attorney-client privilege protection. This usually involves distinguishing legal from business advice.

15.2 DISTINGUISHING BETWEEN LEGAL AND BUSINESS ADVICE

Many lawyers representing clients engaged in business operations provide business advice—which does not deserve privilege protection. [15.201]

In distinguishing between protected legal and unprotected business advice, courts have identified several non-dispositive factors. [15.202]

• Examples include a presentation's title; or the involvement of an outside lawyer in a presentation.

Most courts apply a "primary purpose" test in analyzing privilege protection for a communication that arguably reflects both legal and business advice. [15.203]

•	This "primary purpose" test applies only if the communication contains both legal and business aspects—pure business advice does not deserve privilege protection.
VA	The Western District of Virginia 1 recognized the "primary" purpose test

Some courts take a very broad view of this "primary purpose" test. [15.204]

[Page 84]

• Some courts tend to give corporations the benefit of the doubt under the "primary purpose" test.

Courts taking an expansive view have protected a variety of communications.

• Examples include specific case loss reserves; company's post-accident memorandum; hospital's risk management documents; corporation's "document hold" notice sent to over 600 employees;

...