Chapter 16 Client-to-lawyer Communications

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

Chapter 16

CLIENT-TO-LAWYER COMMUNICATIONS

16.1 INTRODUCTION

Courts frequently deal with the attorney-client privilege's applicability to communications from clients to their lawyers. Despite some lawyers' egocentric belief to the contrary, clients' communications to their lawyers actually represent the key type of protected communications.

16.2 UNCOMMUNICATED CLIENT DOCUMENTS

The privilege can sometimes protect uncommunicated client documents. [16.201]

The privilege can protect documents that a client prepares with the intent of eventually sending to a lawyer for purposes of obtaining legal advice, even if the document is not yet sent or has not arrived. [16.202]

The privilege can also protect uncommunicated documents clients prepare during their communications with a lawyer primarily related to legal advice, or which afterwards memorialize such a privileged communication. [16.203]

16.3 CLIENT-TO-CLIENT COMMUNICATIONS

Despite the privilege's most common applicability to communications between clients and their lawyers, the protection can also occasionally extend to communications between jointly represented clients or between constituents of a single organizational client (such as employee-to-employee communications). [16.301]

Joint clients or corporate employees can engage in privileged communications while preparing to approach a lawyer for legal advice. [16.302]

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Joint clients or corporate employees can also contemporaneously memorialize communications with a lawyer from whom they are seeking legal advice. [16.303]

Most commonly, joint clients or corporate employees can relay a lawyer's advice to their fellow joint clients or other corporate employees with a need to know that advice. [16.304]

16.4 CLIENT'S EXPLICIT OR IMPLICIT REQUEST FOR LEGAL ADVICE: INTRODUCTION

The privilege can protect a client's explicit or implicit request for legal advice. [16.401]

The protection only extends to requests for legal advice, rather than business or other nonlegal advice. ¹ [16.402]

The privilege normally does not protect non-substantive communications about whether a client should obtain legal advice. [16.403]

In some situations, a client explicitly asks for legal advice—which can clearly deserve privilege protection. [16.404]

Although often more difficult to assess, clients can also implicitly ask for legal advice. ² [16.405]

• Clients sometimes implicitly seek legal advice by sending a lawyer a contemporaneous description of historical facts, or a contemporaneous draft document, about which they seek legal advice.

Simply copying a lawyer does not assure privilege protection. [16.406]

In a worrisome recent trend, some courts focus solely or primarily on the four corners of a client's communication to a lawyer in analyzing whether the client was seeking legal advice. [16.407]

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VA The Eastern District of Virginia ³ and the Western District of Virginia ⁴ examined

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