Chapter 9 Lawyers

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

Chapter 9

LAWYERS

9.1 INTRODUCTION

The attorney-client privilege's traditional formulation generally requires a lawyer's involvement.

9.2 NONLAWYERS

Nonlawyers (not acting as clients) usually cannot enjoy privilege protection. For instance, clients clearly can represent themselves pro se—but cannot engage in privileged communications while doing so.

9.3 PATENT AGENTS

Courts disagree about the privilege's applicability to communications involving nonlawyer patent agents serving a function that is similar to that of lawyers.

9.4 NONLAWYERS THOUGHT BY CLIENTS TO BE LAWYERS

Clients generally can claim privilege protection for their communications with a nonlawyer they reasonably thought was a lawyer.

• The Restatement explains that even imposters posing as lawyers can engage in privileged communications under this approach. ¹

A 2011 Southern District of New York decision confirmed that this general rule applies to corporations whose management reasonably (but erroneously) believes that in-house lawyers are authorized to practice law. ²

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9.5 LAWYERS NOT ABLE TO PRACTICE LAW

The privilege generally does not extend to lawyers not eligible to practice law in any jurisdiction, absent application of the client-perception principle discussed above.

• This general rule normally applies to lawyers employed by institutions which cannot practice law—such as accounting firms.

9.6 MULTIJURISDICTIONAL PRACTICE ISSUES

Courts agree that the privilege can protect communications with a lawyer who is eligible to practice in some jurisdiction—even if not...