When Can the Attorney-Client Privilege Be Invoked?

Bloomberg Law Daily Labor Report

Anthony Argiropoulos and Scheherazade A. Wasty, attorneys in the Litigation and Health Care & Life Sciences practice, in the firm’s Princeton office, co-authored an article in the Bloomberg Law Daily Labor Report, titled “When Can the Attorney-Client Privilege Be Invoked?”

Following is an excerpt:

On Jan. 29, 2021, New York Supreme Court Judge Arthur F. Engoron ordered the Trump Organization’s law firm, Morgan, Lewis & Bockius, to turn over documents sought by the New York Attorney General’s Office. The attorney general’s office is seeking these documents in connection with its investigation of the company’s representations concerning its assets.

The January 29 order comes after a Dec. 15, 2020 order directing that an engineer’s documents be produced in the case. There, the attorneys claimed that the report was privileged because attorneys had relied upon it in valuing one of the properties at issue in the investigation.

This time, and after areview in chambers, the court found that the documents now at issue concerned communications “addressing business tasks and decisions, not exchanges soliciting or rendering legal advice.” Additionally, these documents included communications within the law firm discussing public relations matters, which are not legal but related to business issues. Thus, the court again found that no privilege applied and ordered that the requested documents be produced.

Every Communication Is Not Privileged

Given these orders, the question of when the attorney-client privilege applies and when it does not is a relevant and important one. Every communication with an attorney is not automatically privileged and merely copying an attorney on a communication does not invoke the privilege. (See Spectrum Systems Intern. Corp. v. Chemical Bank (N.Y. Ct. App. 1991)).

Rather, a communication (such as emails, correspondence, oral communications, etc.) will only be subject to the attorney-client privilege when it meets certain criteria and is kept confidential.