Joint Clients and the Privilege—A New Wrinkle Reply

The joint-client doctrine, which applies when one lawyer represents two or more clients, holds that the attorney–client privilege protects lawyer–client communications against all others but not when the clients become adverse to each other.  Separately, the at-issue waiver doctrine provides that a client waives the attorney–client privilege when he claims that the attorney breached a Joint Clientduty arising from the attorney–client relationship.

But what happens to the privilege when one, but not the other, of the lawyer’s joint clients sues the lawyer for malpractice—can the nonsuing client assert the privilege to prevent disclosure of attorney–client communications made in the course of joint representation?

In what appears to be a matter of first impression, a California appellate court answered in the negative, ruling that one joint client waives the privilege for all joint clients when he charges the attorney with malpractice.  Anten v. Superior Court, 183 Cal. Rptr. 3d 422 (Ct. App. 2015).  You may read the decision here.

In Anten, Lewis Anten and Arnold and Lillian Rubin retained a law firm to represent them on a matter of common interest.  Anten later sued the law firm for malpractice, but the Rubins did not.  Anten sought discovery of communications between the Rubins and the law firm, but the law firm asserted that the attorney–client privilege protected those communications and the Rubins had not waived it.

The court rejected the privilege and identified two bases for its ruling.  First, the court determined that, because the Anten and the Rubins were joint clients of the law firm, their communications were confidential and privileged as to strangers, but not between themselves.  In other words, the Rubins had no expectation of confidentiality with respect to Anten.  No confidentiality equals no privilege.

Second, the court held that considerations of “fundamental fairness” weighed in favor of vitiating the privilege.  It found unfair the situation where one joint client could prevent a lawyer from introducing communications in a suit to collect his fee.  And conversely, it found unfair the situation where a nonsuing client could prevent disclosure of communications in the other client’s suit against the lawyer.  The court also found “substantial” the risk of collusion between the joint clients in the former situation and the lawyer-nonsuing client in the latter situation.

PoP Analysis.  Given the joint-client doctrine, the court’s ruling on the first-impression issue is not surprising.  Joint clients must know and understand that communications with their lawyer, whether in separate or joint meetings, are not confidential between themselves.  And they must know that it is unlikely that they can raise the privilege to preclude disclosure of their communications in any subsequent suit involving the clients and lawyer as adversaries.

The Anten case provides lawyers with a take-away as well.  Lawyers representing multiple clients should ensure that their clients understand the lack of confidentiality between themselves of lawyer communications—in any situation. A best practice is to include these statements in the engagement agreement or otherwise having the client sign an acknowledgement.

Legal Analysis v. Conclusion: A Dividing Line for the Deliberative-Process Privilege Reply

The First Circuit joined the Second and D.C. Circuits in ruling that the deliberative-process privilege protects legal counsel’s conclusions and opinions in situations where the governmental agency based a particular decision on counsel’s opinion rather than her reasoning or analysis behind the opinion.  Governmental agencies at the federal, state, and local levels will likely use this reasoning/opinion dividing line in responding to FOIA or state public-records requests.  New Hampshire Right to Life v. U.S. Dep’t of Health & Human Servs., 2015 WL 467525 (CTA1 Feb. 4, 2015).  You may read the decision here.

New Hampshire Right to Life (NHRTL) submitted a FOIA request to and later filed suit against HHS seeking documents related to HHS’s grant award to Planned Parenthood of Northern New Englancrossinglined.  HHS withheld documents containing Office of General Counsel’s advice to HHS that it could legally issue the grant to Planned Parenthood.

FOIA’s Exemption 5 shields documents from disclosure that are normally non-discoverable in civil litigation, including documents protected by the deliberative-process privilege and the attorney–client privilege.  The deliberative-process privilege protects communications that are predecisional and deliberative.

NHRTL argued, however, that HHS waived the privilege because it adopted the OGC’s advice—that HHS could legally issue the grant—as “policy of the Agency.”  While it is true that an agency adoption of predecisional opinions as policy obviates the privilege, the court created a demarcation line between adoption of legal opinions and adoption of the reasoning and analysis behind those opinions.

The court said that it makes “no sense” to adopt a “categorical rule” that “every time an agency acts in accord with counsel’s view it necessarily adopts counsel’s view as ‘policy of the Agency.’”  This is especially true where counsel’s advice is simply that the agency has no legal barrier preventing it from making a particular position.

The court followed cases in the Second and D.C. Circuits in ruling that Exemption 5 does not protect legal opinions from disclosure only when the agency actually adopts the reasoning behind counsel’s opinions.  In other words, an agency’s reliance on a document’s conclusions in rendering a decision does not necessarily mean the agency relied on the document’s analysis.  It is only the agency’s adoption of counsel’s reasoning that destroys the privilege.

The court highlighted the instrumental reasoning behind the deliberative-process privilege by recognizing the chilling effect on agencies seeking counsel’s advice for any broader rule:

It is a good thing that Government officials on appropriate occasion confirm with legal counsel that what the officials wish to do is legal.  To hold that the Government must turn over its communications with counsel whenever it acts in this manner could well reduce the likelihood that advice will be sought.

The moral of the story is that, to keep the privilege, government agencies should carefully rely upon its counsel’s conclusions in their decision-making process and avoid expressly adopting counsel’s reasoning or analysis.  For other cases, see National Council of La Raza v. Dep’t of Justice, 411 F.3d 350 (CTA2 2005) and Electr. Frontier Found. v. U.S. Dep’t of Justice, 739 F3d 1 (CTADC 2014).

Notable Ruling on the Corporate Attorney–Client Privilege and Former Employees Reply

An issue often discussed but infrequently addressed is whether the attorney–client privilege protects communications between corporate counsel, including in-house lawyers, and the company’s former employees.  One federal court—predicting Louisiana law—recently ruled that the privilege protects counsel–former-employees’ communications in certain circumstances.  Hanover Ins. Co. v. Plaquemines Parish Gov’t, 2015 WL 546699 (E.D. La. Feb. 10, 2015). You may read the decision here.

The Issue

In a massive construction lawsuit over the design and building of a community center in Bootheville, Louisiana, the parties deposed the general contractor’s Former Employeeformer vice-president and the architect’s former construction administrator.  Both were employed with their respective firms during the construction but had since left.  And each met with his former company’s lawyers to prepare for the deposition.

Deposing counsel asked about deposition-preparation conversations with their former employers’ counsel and the documents they reviewed.  Counsel for the former employers objected on attorney–client privilege grounds, and a motion to compel ensued.

The court framed the issue: “the question presented is simple, even if the answer is not: are conversations between counsel for a corporation and the corporation’s former employees entitled to the attorney–client privilege, and, if so, to what extent?”


In this diversity case, the court first questioned whether federal or state privilege law applied, properly ruling that, under FRE 501 and the Erie Doctrine, federal courts apply state law which, here, is Louisiana’s law.  Louisiana courts have not issued a “reasoned decision” whether the privilege applies to former employees, so the federal court predicted Louisiana law in reliance upon Chief Justice Burger’s concurring opinion in Upjohn Co. v. United States, 449 U.S. 383 (1981) and opinions from the 4th and 9th Circuits. In re Allen, 106 F.3d 582 (CTA4 1997); In re Coordinated Pretrial Proceedings, 658 F.2d 1355 (CTA9 1981).


The court found it clear that “some privilege exists” between a corporation’s counsel and its former employees, and just needed to outline its scope and parameters.  The court ruled that the privilege applies, “at a minimum,” where—

  1. The company employed the employee during the time relevant to the lawyer’s current representation;
  2. The former employee possesses knowledge relevant to the lawyer’s current representation; and
  3. The communication’s purpose is to assist the company’s lawyer in
    1. evaluating whether the employee’s conduct has bound or would bind the company;
    2. assessing the legal consequences of that conduct; or
    3. formulating appropriate legal responses to actions that others have taken or will take with regard to that conduct.

PoP Analysis

The Hanover decision provides authority for corporate lawyers—whether outside or in-house counsel—to claim privilege over communications/interviews with former employees. But corporate lawyers should not take this decision as a blanket privilege for all communications and, instead, should ensure that former-employee interviews specifically fall within the parameters. One suggestion is to discuss these parameters with the former employee before the substantive interview and perhaps have her sign a statement acknowledging the reasons for the interview and her understanding of its confidential and privileged nature.

The court applied Louisiana (the forum state) law without addressing whether Louisiana’s conflict-of-laws rules dictated the application of another state’s law.  Although likely a moot point because the communications occurred in Louisiana, judges and practitioners should always consider whether the forum state’s conflict-of-laws rules dictate that another state’s privilege law applies to the putatively privileged communication. For more information on this topic, see this post and my article titled The Application of Conflict of Laws to Evidentiary Privileges.

Court Rejects Privilege for Company’s Lawyer–Risk-Management Director Reply

Companies that have an attorney leading its internal risk-management department should pause and read the court’s decision in Casey v. Unitek Global Services, 2015 WL 539623 (E.D. Pa. Feb. 9, 2015).  The court ruled that the attorney–client privilege did not protect from discovery internal discussions involving its risk-management director, who was an attorney and managed litigation arising from insurable claims.  You may read the decision here.

Slide1This case involves an employment discrimination suit brought against Unitek by its former Director of Risk Management.  The Plaintiff–DRM was a licensed attorney who, among other duties, managed litigation arising from insurable claims against Unitek.  One of Unitek’s in-house lawyers verified that, in this role, the lawyer–DRM attended quarterly litigation meetings that involved discussions regarding matter-specific litigation strategy, evaluation, cost-benefit analysis, and Unitek’s legal theories.  See the in-house lawyer’s declaration here.

Unitek sought a protective order preventing the Plaintiff–DRM from using putatively privileged communications in her prosecution.  The court, however, rejected Uniteck’s assertion that the privilege covered discussions involving the DRM, even though she was a lawyer.

The court found that the DRM position did not require “legal knowledge, much less a juris doctor.”  Even though she managed litigation, the court equated her role to “an in-house insurance broker and claims adjuster.”  Although the court acknowledged that her role was “quasi-legal,” it found that she was “acting as a client to outside counsel” rather than “as Unitek’s attorney.”

Unitek proved that she was involved in privileged-type discussions at quarterly litigation meetings, but failed to prove that it actually sought her legal advice or opinion as to any of the insurable claims at any of these meetings.  In short, the court held—

[The] management of insured claims in litigation does not establish an attorney–client relationship.

The court also addressed the dual role of in-house lawyers stating, without caveat, that “in-house counsel play a dual role of legal advisor and business advisor.”  To invoke the privilege, Unitek must “clearly demonstrate” that communications involving the lawyer–DRM were made for the “express purpose of securing legal not business advice.”  And here, the court found that the lawyer–DRM did not receive any communication “in her role as a legal advisor.”  For further discussion on this dual-purpose issue, see this blog post and this one.

PoP Analysis.  The court’s analysis and conclusions should provoke companies to reassess whether it can claim privilege over a litigation manager’s communications. If the position is more akin to an insurance claims-adjuster, then it is less likely that a company can successfully invoke the corporate attorney–client privilege.  And if a true attorney–client relationship is lacking, then discussions in which these employees participate could be subject to privilege waiver.

Important Lessons about the Settlement Privilege Reply

Did you know there is a settlement privilege?  Not many do, primarily because few courts have adopted the privilege.  The Sixth Circuit adopted a federal common-law settlement privilege in Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976 (CTA6 2003), but other courts reject the Goodyear decision.  See, e.g., In re MSTG, Inc., 675 F.3d 1337 (Fed. Cir. 2012); Matsushita Elect. Indust. Co. v. Mediatek, Inc., 2007 WL 963975 (N.D. Cal. 2007).

MediationA recent federal-court decision highlights some of the misconceptions and misassumptions about the so-called settlement privilege, and provides lessons for in-house and outside counsel participating in settlement negotiations.  Babcock & Wilcox Power Generation Group, Inc. v. Cormetech, Inc., 2015 WL 350392 (N.D. Ohio Jan. 23, 2015).  You may access the decision here.

Brief Background

Babcock presents a classic example of how the settlement privilege arises.  Kansas City Power & Light Co. sued Babcock over its installation of a nitrogen-oxide reducing system that contained a catalyst module built by Cormetech.  KCPL and Babcock settled their dispute, and Babcock sued Cormetech for indemnification.

In discovery, Cormetech sought settlement communications between KCPL and Babcock and documents created for settlement purposes.  Babcock asserted the federal common-law settlement privilege adopted in Goodyear or, alternatively, the Ohio state-law mediation privilege.

Conflicts-of-Law Issues

The court quickly raised the issue whether federal or state privilege law applied. Because this case was a diversity action involving a state-law contract claim, federal common-law did not apply, rendering the federal settlement privilege inapplicable.  Babcock argued that privilege law is procedural, rather than substantive, thereby requiring application of federal privilege law, but the court summarily and properly discarded that legal theory.

Babcock correctly noted that Goodyear adopted the federal common-law settlement privilege in a diversity case involving state-law claims.  Indeed, one can criticize Goodyear for applying the wrong law—it clearly should have applied state law.  But, the Babcock court ignored that aspect, stating simply that “be that as it may, the Court in Goodyear did not discuss why it applied federal common law to the privilege asserted.”

State Mediation Privilege & Choice-of-Law Contract Provisions

Fortunately for Babcock, it added the alternative argument that Ohio’s mediation privilege applied.  Ohio’s mediation statute provides that “mediation communications will be privileged against disclosure,” Ohio Rev. Code Ann. § 2710.02, and the court found that this state-law privilege protected the KCPL/Babcock communications from discovery.

Interestingly, the KCPL/Babcock settlement agreement contained a choice-of-law provision stating that Missouri law governed the agreement.  The Babcock–Cormetech dispute was in Ohio, and the parties argued and applied the Ohio mediation privilege even though the underlying mediation occurred in Missouri and the resulting settlement agreement designated Missouri law as governing.

Because Cormetech failed to advance Missouri law, the court simply did not “consider whether Missouri law applies to the privilege asserted here.”  This is disappointing from an academic standpoint as it deprives us from obtaining guidance on choice-of-law contractual provisions concerning privilege law.

PoP Analysis

The Babcock decision presents several practice tips for lawyers involved in settlement negotiations.

  • Always assume a third-party may later seek your settlement-related communications;
  • Know whether your state jurisdiction has a statutory mediation privilege or common-law settlement privilege;
  • Do not rely solely on FRE 408 (or state-law equivalent) disclaimers as privilege-protectors—these rules pertain to admissibility only;
  • Label settlement communications with opposing counsel and settlement neutrals as “privileged and confidential”;
  • If your state has a mediation privilege, then identify that authority (statute or common law) in your communications;
  • Ensure that all settlement-related communications and documents are confidential when delivered and kept confidential thereafter;
  • In the resulting settlement agreement, insert the appropriate choice-of-law provision and expressly state that this provision includes the chosen law’s mediation or settlement privilege.

Developing Issue: Attachments to Privileged Emails Not Necessarily Privileged Reply

An issue that has historically received little attention in privilege law is whether the attorney–client privilege protects from discovery documents sent as email attachments where the email communication itself is privileged.  This issue, however, is receiving increasing attention and lawyers should not assume that the privilege automatically covers the attachment just because it covers the email.

The attorney–client privilege protects email communications between a client and his attorney, including communications between an employee and his company’s attorney, when the email is confidential when sent, kept confidential thereafter, and is for purposes of soliciting or receiving legal advice. Many lawyers, outside counsel and in-house counsel alike, assume that an email meetinemail attachmentg these criteria means that attachments to the email necessarily receive the same protection.

Courts are increasingly challenging that assumption.  Federal and state courts are looking beyond the email to determine whether the attachment independently meets the criteria to support application of the attorney–client privilege.  Courts have held that attachments to emails “must independently earn that protection.”  AM General Holdings, LLC v. The Renco Group, LLC, 2013 WL 1668627 (Del. Ch. Ct. Apr. 18, 2013).  They recognize with increasing regularity that email attachments can be produced independently of the cover email.  Muro v. Target Corp., 2006 WL 3422181 (N.D. Ill. Nov. 28, 2006).

Similarly, courts find that sending email communications to third parties not only waives the privilege with respect to the email, but also to any attachment to the email.  United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065 (N.D. Cal. 2002).

In Kleen Products, LLC v. International Paper, 2014 WL 6475558 (Nov. 12, 2014), which was the subject of an earlier post concerning the in-house attorney–client privilege, the court held that the privilege did not attach to a PowerPoint presentation sent for review to the company’s in-house attorney.  In so holding, the court stated:

Attachments which do not, by their content, fall within the realm of the attorney–client privilege cannot become privileged by merely attaching them to a communication with the attorney.

The take-away here is that courts are increasingly scrutinizing attachments to determine whether they warrant privilege protection independent of the privileged-nature of the cover email.  Lawyers, particularly in-house lawyers, should heed this increasing scrutiny and ensure that employees sending attachments via email establish and maintain the privilege over the attachment just as they would over the email.

Improving the chances of gaining privilege protection includes, by way of example only, labeling the attachment as “Protected by the Attorney–Client Privilege” and “Confidential,” stating that the document is sent for purposes of seeking legal advice, and stating that any recipient should not distribute attachment further without counsel’s authorization.

What’s Mine is Not Yours: Former Officers and the Corporation’s Attorney-Client Privilege Reply

Many issues arise when an officer or director involuntarily leaves a company.  Companies are quick to enforce non-compete agreements and protect trade secrets against the former officer, but often do not consider protection of legal communications in which the officer participated.

A former officer inherently maintains insider information, including the contents of privileged emails and other communications that he created or Firedreceived.  And he may personally possess this information because he extracted them prior to leaving or otherwise had them in his personal possession during the normal course of business.

But in post-departure litigation between the officer and the company, the question arises whether the corporation may prevent the use of privileged, officer-created communications or whether the privilege equally belongs to the former officer turned adversary.

In my recent article, What’s Mine is Not Yours: Former Officers and Directors and the Corporation’s Attorney-Client Privilege, co-written with Kristi Wilcox Arth, I discuss that courts take two approaches to this issue: the collective-corporate-client approach and the entity-as-client approach.  The approach a court takes will determine whether the corporation may prevent a former officer from using privileged communications.

This article, available here, was originally published in The Corporate Counselor, and I thank this publication for permission to reprint the article on my blog.  The article was later re-published in The Association of Corporate Counsel Newsstand and Corporate Counsel.  And for a specific discussion of a court addressing these issues, see my prior post “Who’s the Client? Former CEO Not Entitled to Company’s Privileged Documents”.

I hope you find the article informative and helpful.

Judge Lamberth Finds No Waiver Where Party Produces Privileged Documents Pursuant to a Subpoena Reply

Judge Royce C.  Lamberth, who oversaw the Foreign Intelligence Surveillance Court after September 11, 2001, issued a point-blank ruling that a government agency’s disclosure of privileged information to the U.S. Senate’s Permanent Subcommittee on Investigations did not constitute a waiver of the attorney–client privilege or deliberative-process privilege.  Spears v. First American eAppraiseIT, 2014 WL 6783737 (D.D.C. Dec. 2, 2014).  You may read Subpoenathe decision here.

The U.S. Senate’s Permanent Subcommittee on Investigations issued a report in 2011 on the 2007–2008 Wall Street financial collapse.  The report included references and summaries of documents that the Office of the Comptroller of Currency provided to the Subcommittee under seal pursuant to a subpoena duces tecum.

In a subsequent civil lawsuit against First American eAppraiseIT, the plaintiffs subpoenaed the OCC requesting that it produce the three documents behind the summaries that the Subcommittee publicly disclosed in its report.  The documents were a memorandum from OCC (then Office of Thrift Supervision) attorneys to its Chief Counsel, OCC enforcement attorney’s notes containing legal analysis of the investigation of Washington Mutual Bank, and a memorandum of an OCC Regional Appraisal to OCC Enforcement Counsel.

The OCC objected on grounds that the attorney–client privilege and the deliberative-process privilege protected the documents from disclosure.  The plaintiffs agreed with the privilege assertions, but stated that the OCC’s disclosure of the documents to the Subcommittee—and the Subcommittee’s subsequent disclosure in its public report—constituted privilege waiver.

Judge Lamberth, however, rejected these arguments.  He ruled that the OCC had not waived the privileges because the Subcommittee, and not the OCC, had publicly disclosed the documents’ content.  He ruled that the OCC’s disclosure of documents to the Subcommittee was not tantamount to the OCC publicly disclosing the documents, noting that “OCC is not responsible for” the Subcommittee’s report.

Judge Lamberth also held that OCC did not waive the privileges by producing the documents to the Subcommittee because it did so in response to a subpoena.  He held that “documents produced pursuant to a subpoena are not voluntarily disclosed,” noting that “[t]here is less reason to find waiver when documents have been provided pursuant to a subpoena, and provided under seal.”

PoP Analysis.  Judge Lamberth distinguished each case on which the plaintiffs relied in asserting their privilege-waiver argument, but provided little case-law support for his rulings that producing documents pursuant to subpoena does not constitute privilege waiver or that a government branch’s disclosure does not equate to public disclosure by the party originally producing the documents.  Yet, for lawyers looking for authority supporting the argument that producing documents pursuant to a subpoena does not constitute voluntary disclosure and privilege waiver, Judge Lamberth provides it here.

Court Takes Narrow View of Privilege Where General Counsel Has Legal and Operational Titles 2

How many in-house lawyers have non-lawyer titles, for example, Chief Legal Officer and Secretary or General Counsel and Vice-President?  The multi-titled in-house counsel is prevalent in today’s corporate world but, as one federal court bluntly held, an in-house lawyer with legal and non-legal roles receives a narrow view of her putatively privileged communications.

In Kleen Products, LLC v. International Paper, 2014 WL 6475558 (N.D. Ill. Nov. 12, 2014), which you may access here, a defendant sought to cloak with privilege virtually all communications that he sent or on which he was the primary recipient or was carbon-copied.  Finding this position “troubling,” the court determined that “numerous allegedly privileged emails … contain nothing more than mundane chatter about routiwearing_two_hats_500_clr_12985ne business matters.”

Noting that copying an in-house lawyer “on a given communication does not automatically transform the contents of that message into a privileged request for legal advice,” the court found significant that the company’s in-house lawyer held the title of General Counsel, Chief Administrative Officer, and Senior Vice-President and Secretary.

The court agreed that “drawing a distinction between business and legal advice is not always easy,” but took a decidedly narrow view of the in-house attorney–client privilege where communications involve legal and business aspects.  Regarding the position-title issue, the court stated that, “[w]hen in-house counsel occupies both a legal and operational role, the test for determining if a document is privileged is whether the predominant purpose of the communication was to render or solicit legal advice.” And if legal advice is incidental to business advice, the privilege does not apply.

Importantly, the court held that when an employee prepares a document for simultaneous review by lawyers and non-lawyers seeking business and legal advice, the document is “not primarily legal in nature and is therefore not privileged.”  In other words, “[i]t is improper to infer as a blanket matter that any email asking for ‘comments’ that copies in-house counsel along with several other high level managers automatically is a request for legal review.”

PoP Analysis.  The court here took a strict and narrow view of the in-house attorney–client privilege, particularly in its application of the primary purpose standard.  As discussed in this prior post, courts generally apply two standards in assessing whether a corporate communication is more business or more legal related—the “because of” standard and the “primary purpose” standard.

While the primary purpose standard is the narrower of the two, the court here seems to have taken the test to an even higher level of scrutiny, particularly with its comment that a document sent for simultaneous business and legal review is automatically not privileged.

In the end, a significant lesson here is that not only do in-house lawyers receive heightened scrutiny of their communications, but even more scrutiny when the in-house lawyer carries business-related position titles.  And at the risk of stating the obvious, those in-house lawyers with additional titles should heed this case and take even greater precautions to establish and maintain the privilege over their communications.

Communications Between a Trade Association’s In-House Counsel and Its Members—Privileged? Reply

Trade associations’ in-house lawyers often consult with the associations’ members and members’ counsel on legal issues.  The question arises whether the attorney–client privilege protects these communications from discovery.  A Texas appellate court recently said “no” and ordered a trade association’s lawyer to answer deposition questions about her conversations with a member’s lawyer.  In re Baytown Nissan, Inc., 2014 WL 6388414 (Tex. Ct. App. Nov. 7, 2014).  You may review the decisio31998746_sn here.


A Nissan dealer sought to sell its assets to the plaintiff, BSAG, Inc., but Nissan North America exercised its right-of-first-refusal to purchase the assets.  During the negotiations, the dealer’s lawyer communicated with the Texas Automobile Dealer Association’s General Counsel.  BSAG deposed the dealer’s lawyer and TADA’s in-house counsel during subsequent litigation, and inquired about those communications.

The dealer argued that the attorney–client privilege protected these communications from discovery, but the trial court disagreed forcing the dealer to seek a writ of mandamus.

No Blanket Privilege

Despite recognizing that a trade association’s counsel regularly consults with the association’s members, the appellate court declined to adopt a “blanket rule of privilege” between the two. Instead, the court preferred a case-by-case analysis to determine whether an attorney–client relationship actually existed between the member (or its counsel) and the association’s counsel.

No Attorney–Client Relationship

The court of appeals found that Texas’s attorney–client privilege statute, Tex. R. Evid. 503, requires an actual attorney–client relationship between TADA’s attorney and its member. Because TADA’s general counsel was not the dealer’s lawyer, the court refused the dealer’s argument that the TADA lawyer’s status as an attorney—even if not the member’s attorney—met the statutory requirement.

Implied Relationship?

A court may imply an attorney–client relationship, based on the parties’ conduct, even without an express agreement.  Here, the dealer argued that an implied attorney–client relationship existed because TADA’s general counsel provides legal services to TADA’s membership.

With no per se privilege between an association’s counsel and its members, the court reviewed “objective evidence” to determine whether an implied attorney–client relationship existed.  The court found no relationship, largely due to the absence of several factors:

(1) the dealer’s counsel did not ask TADA’s counsel to provide legal services to the dealer; (2) no engagement letter existed; (3) the dealer’s attorney did not express belief that TADA’s counsel was also acting as counsel to the dealer; (4) neither lawyer provided assurances that the conversation was confidential and privileged; and (5) TADA’s counsel did not run a conflicts check.

For these reasons, the court rejected the implied attorney–client relationship argument and, correspondingly, the existence of a privilege protecting the lawyers’ communications.

Work-Product Doctrine?

Despite the lack of a privilege, the dealer’s counsel successfully invoked the work-product doctrine.  The court found that the dealer’s counsel engaged in the conversation with TADA’s general counsel as part of his investigation into Nissan’s right-of-first-refusal and the overall asset sale.  And because the deposition questions called for counsel’s thoughts and mental impressions, the work-product doctrine precluded any further deposition questioning.

But the work-product doctrine did not prevent TADA’s counsel from testifying about the conversation.  The court ruled that the doctrine was inapplicable due to the lack of any type of relationship beyond the association–member context.  The deposition of TADA’s counsel, therefore, moved forward.

PoP Analysis

It appears that the dealer’s counsel and TADA’s counsel were not on the same page.  Dealer’s counsel believed the privilege covered the conversation, but TADA’s counsel contradicted that belief, stating that dealer’s counsel never asked her to enter into an attorney–client relationship or for assurance that the conversation was confidential and privileged.  You may read the TADA lawyer’s affidavit here.

Trade associations and their members should take heed of this case, particularly the “no blanket privilege” ruling.  Lawyers for trade associations and their members must take certain steps to improve the chances of successfully invoking the privilege.

These steps include formalizing an attorney–client relationship in writing, if appropriate.  Even if the engagement is an uncompensated one, formalizing the relationship will show a reviewing court of the parties’ intent.

And the lawyers should conduct their interactions in a way that shows intent to establish and maintain the privilege.  Written communications should include “confidential & privileged” designations, contain legal-related comments, and be kept confidential.  For more tips, see my article, A Higher Standard–Claiming Attorney-Client Privilege is Tougher for In-House Counsel.