Chapter 17 Lawyer-to-client Communications

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

Chapter 17

LAWYER-TO-CLIENT COMMUNICATIONS

17.1 INTRODUCTION

The attorney-client privilege can protect communications from lawyers to their clients. These types of communications generally deserve less protection than clients' communications to their lawyers.

17.2 UNCOMMUNICATED LAWYER DOCUMENTS

As with some documents that a client has not yet communicated to a lawyer, the privilege can protect documents a lawyer has not yet communicated to a client. [17.201]

The privilege generally applies to a lawyer's uncommunicated notes memorializing conversations with a client. [17.202]

In contrast, some courts fail to protect uncommunicated lawyer documents. [17.203]

• Some courts apparently do not even protect a lawyer's legal research, unless it was communicated to the client.

17.3 LAWYER-TO-LAWYER COMMUNICATIONS

In most situations the privilege can apply to lawyer-to-lawyer communications that directly relate to a lawyer's provision of legal advice to a client. [17.301]

Lawyers working together to represent a common client can nearly always engage in privileged communications about their joint work. [17.302]

However, the privilege does not always protect lawyer-to-lawyer communications. [17.303]

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• For example, the privilege does not protect communications between lawyers representing different clients communicating without the type of common interest agreement courts require. ¹

In contrast to the attorney-client privilege, the work product doctrine can protect a lawyer's communications with other lawyers, because that protection does not depend on a client's involvement. ² [17.304]

17.4 RULES GOVERNING LAWYER-TO-CLIENT COMMUNICATIONS

Under what is called the "derivative protection" doctrine, the privilege generally protects lawyers' communications to clients only to the extent that the communications relate to the clients' confidential communication to the lawyers. [17.401]

Courts take differing approaches to this basic principle. [17.402]

•	Some courts essentially protect all communications from lawyers to their clients.
•	Some courts protect lawyer communications based on client confidences, or the disclosure of which would tend to reveal client confidences.
•	At the other extreme, some courts seem to protect lawyer communications only if they disclose client confidences.
VA	The Eastern District of Virginia 3 and the Western District of Virginia 4 explained that lawyer-to-client communications deserved privilege protection if they would "reveal" client confidences. The Eastern District of Virginia 5 explained that lawyer-to-client communications deserve privilege protection if they "reflect" client confidences.

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Some courts have dealt with related issues. [17.403]

• After a long judicial debate, courts in Pennsylvania ⁶ have extended privilege protection to lawyer-to-client communications.

• The Vioxx⁷ decision discussed in Chapter 15 held that many communications from Merck in-house lawyers to Merck employees did not deserve privilege protection—because the employees' communications to those lawyers forfeited any privilege protection when they also were widely circulated to Merck's nonlawyers.

17.5 LAWYERS' REQUESTS FOR FACTS FROM CLIENTS

The privilege generally protects a lawyer's request for historical facts from the client, which the lawyer needs before providing legal advice to the client.

17.6 HISTORICAL FACTS

The privilege usually does not protect historical facts—something either happened or it did not happen.

• This is the same principle that applies in the context of client-to-lawyer communications. ⁸

Despite courts' recognition of this basic principle, relatively recent Fed. R. Civ. P. 26(b)(5)(B) and Federal Rule of Evidence 502 inexplicably refer to privileged or work product-protected "information."

17.7 HISTORICAL FACTS WITHIN THE LAWYER'S KNOWLEDGE

Courts have debated the privilege's applicability to historical facts within lawyers' knowledge. [17.701]

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Theoretically, the privilege does not protect historical facts that lawyers do not give their clients—but...