Lawyers are increasingly meeting individual clients and corporate-client employees in restaurants, coffee shops, and bars. And this phenomenon is not limited to solo practitioners who use the local Starbucks as an office. Firm-based lawyers more often interview a clientâs employee or consultant over lunch rather than in their offices. And in-house lawyers discuss confidential information with corporate employees in the company cafĂ©.
A key component to the corporate attorneyâclient privilege is that lawyerâclient conversations occur in a confidential setting. In a recent Oregon case, a lawyer escaped privilege waiver for a meeting held in a restaurant, but only after having to prove that the tables around him were empty and that no one overhead the conversation. While this was a privilege win, it should give lawyers pause about their client-meeting locations. MacFarlane v. Fivespice, LLC, 2017 WL 1758052 (D. Ore. May 4, 2017). You may read this decision here.
Restaurant Conversation
A former server at CafĂ© Murrayhill in Beaverton, Oregon filed a retaliation suit against the cafĂ©. The cafĂ©âs lawyer met with the executive chefâat the restaurant. Seems reasonable enough, but the meeting occurred in a restaurant booth and not in a private meeting room.
The serverâs lawyer moved to require the chef to disclose the conversation, arguing that the privilege did not apply because the meeting occurred in non-confidential, public setting.
Proof of Confidentiality
To counter the privilege-waiver argument, the cafĂ© filed its general manager’s declaration, which you may read here. The GM said that, while the meeting occurred in a restaurant booth, there âwere not many people in the restaurant.â The booth was âten feet away from any occupied tablesâ and the lawyer and chef did not raise their voices. According to the GM, âno one was within earshotâ of the conversation.
Interestingly, the GM stated that the cafĂ© contained a back office, but it had no windows and that, if he closed the office door, âsomeone could stand outside of the office and eavesdrop on a conversation in the officeâ So, rather than meeting in the back office out of an eavesdropping fear, they met in the main area of the restaurant?
Court Ruling
The court accepted the GMâs attestations, and held that meeting in a restaurant booth in this manner âwas a sufficiently confidential setting for maintaining the attorneyâclient privilege.â
POP Analysis
The cafĂ© and its lawyer survived this privilege challenge, and the GMâs declaration provides a good roadmap if one ever challenges the privilege of your restaurant-based conversations. But the greater lesson is that lawyers must not assume that meetings in restaurants, coffee shops, and other public settings are confidential.
Just like elevator conversations, these conversations are subject to intentional or unintentional eavesdropping. The confidentiality requirement to sustain the attorneyâclient privilege is an indispensable one, and lawyers should look for private meeting space to lessen the chances of privilege-waiver challenge. Lawyers beware.