The attorney-client privilege is a well-known legal protection afforded to clients who seek legal advice from their legal counsel and engage in confidential communications. The privilege is well-established as the “oldest of the privileges for confidential communications known”. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). The purpose of the privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in observance of law and administration of justice.” Id. It is also well settled law that the attorney-client privilege covers corporate clients. Id. at 393-94.
It is commonly perceived that if an attorney is copied on an email or other form of communication, then the privilege automatically attaches. Thus, in the event that a company is involved in litigation, many believe that any communication that involves an attorney is protected from disclosure by the attorney-client privilege. Unfortunately, the law is not this cut and dried.
Both the Sixth and Fourth Federal Circuit Courts of Appeals have noted that the mere existence of the attorney-client relationship is not sufficient to warrant a presumption of confidentiality; rather, the privilege only applies where necessary to achieve its purpose of protecting communications seeking legal advice. See, e.g., In re Columbia/HCA Healthcare Corp. Billing Practices Lit., 239 F.3d 289, 294 (6th Cir. 2002); United States v. Tedder, 801 F.2d 1437, 1441 (4th Cir. 1986). The following elements have been identified to generally determine whether the attorney-client privilege applies:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
Tedder, 801 F.2d at 1441; United States v. Goldfarb, 328 F.2d 280, 281 (4th Cir. 1964).
While at a glance this test may appear to be easy to apply, but it is more complicated in instances where attorneys serve as outside general counsel and/or business counsel. Generally, “communications between an attorney and client of primarily a business nature are outside the scope of the privilege.” Guy v. Yusen Logistics (Americas), Inc., 2018 WL 8547666, at *3 (E.D. Tenn. Dec. 20, 2018) (internal citations omitted). However, there can be significant overlap between legal and business (i.e. non-legal) matters. In that instance, courts will “consider whether the predominant purpose of the communication is to render or solicit legal advice.” Alomari v. Ohio Dep’t of Public Safety, 626 F. App’x 558, 570 (6th Cir. 2015). What constitutes the “predominant purpose of the communications” is not a straight forward analysis, and the type of advice being sought should be considered, as well as whether such advice could be given by a non-lawyer. Id.