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A Whisper Doesn’t Cut It
October 10, 2022
“Speech is a very important aspect of being human. A whisper doesn’t cut it.” Many attribute this quote to James Earl Jones, and it makes sense that the actor with the booming, iconic voice would utter this adage. Speech is also an important aspect of the corporate attorney–client privilege, and when it comes to proving that a communication pertains to legal advice, a whisper certainly doesn’t cut it.
Most business employees, and too many lawyers, assume that involving an in-house lawyer in a meeting, on a conference call, or in an email chain signifies that the privilege protects those communications from future discovery requests. This belief is incorrect. Courts limit privilege protection to confidential communications made for legal advice purposes. But, for a couple of reasons, judges find it challenging to determine whether a communication involving an in-house lawyer pertains to legal advice.
One challenge involves the governing legal standard. Courts apply seemingly different standards when assessing the privilege. Some require the proponent to prove an employee sent an email to the in-house lawyer “because of” the need for legal advice. This sole cause standard presents a high hurdle. Other courts demand a showing that the primary purpose of the email was legal-related, while still others require that “a” predominant purpose, as opposed to “the” predominant purpose, was legal advice.
Another challenge is factual. Courts applying their chosen standard look at the factual atmosphere surrounding the email’s creation and its content to discern a legal purpose. A court will review the email for a business employee’s request for legal advice, a lawyer’s legal advice about future conduct or assessment of the legal implications of past conduct, or the interpretation of legal principles. While discerning a legal advice purpose within a single email between an employee and in-house lawyer may prove relatively simple, the complexity arises when employees merely copy an in-house lawyer or decide to include an in-house lawyer within an existing business-related email chain.
In those situations, the request for legal advice should be as resounding as James Earl Jones’ voice to secure privilege protection. One federal court provided an excellent example when it dealt a company a privilege loss after finding that an email thread, which included two in-house lawyers, requested a mere whisper of legal advice.
In that case, OneCo Corporation’s in-house lawyer emailed an in-house lawyer and a business executive at TwoCo Corporation about a prior meeting that involved foreign government officials. The TwoCo executive forwarded that email to a group of TwoCo employees, and, in typical fashion, another executive responded and copied a second TwoCo in-house lawyer who had attended the meeting, asking her to “please opine here.” Although she did not respond, another TwoCo employee did, starting a new discussion (but unfortunately not a new email thread) and copying a TwoCo in-house lawyer with no express reason for doing so.
In subsequent litigation, OneCo sought production of TwoCo’s email thread. TwoCo objected on privilege grounds, arguing that its employee’s explicit request “please opine here” shows that the thread sought legal advice. And while there was no express request for the previous in-house attorney to “opine here,” TwoCo filed the employee’s affidavit stating that he deliberately copied her to seek her legal advice — an implied request, one might say.
The court rejected TwoCo’s privilege claims over both the explicit request and the implicit request. As for the explicit request to “please opine here,” the court stated that because in-house counsel wear business and legal hats, it must “carefully scrutinize” the email thread to discern whether seeking legal advice was its predominant purpose. The court’s scrutiny found no evidence that the request was for a legal opinion as opposed to a factual summary of the meeting with foreign officials. Perhaps a sworn declaration from the in-house attorney would have satisfied the court, but she did not submit one.
TwoCo submitted a non-lawyer employee’s declaration to prove that the implicit request was for legal advice. But this effort fell short, the court held, because the employee stated that he copied her to seek her legal advice, not that he sent the email requesting her legal advice. And while this nuance is certainly subtle, the court agreed that an employee’s request for legal advice may be implicit within an email thread. But in an implicit request, the legal-advice element must be “more than a whisper.”
This case illustrates that involving lawyers in an existing, ongoing business-related email thread lessens the chance of securing privilege protection. It is simply too easy for a court “carefully scrutinizing” the thread to discern a predominant business purpose. The better option in these instances is for the employee to start a new email string with in-house lawyers because a direct, one-on-one communication raises the chances that a court will see a legal advice purpose.
In any email communication with an in-house lawyer, whether individually or within a larger group, ensure that the legal advice request is clear and express. “Please provide your legal opinion on this course of action” is significantly better than “please opine here.” Before hitting the send button, review the email to see whether it makes a request for legal advice, provides legal advice on past conduct or a proposed course of action, or in some way interprets legal principles.
If not, reword the email to make it clear. As James Earl Jones put it, “a whisper doesn’t cut it.”
Todd Presnell is a trial lawyer in Bradley’s Nashville office. He is the creator and author of the legal blog Presnell on Privileges, presnellonprivileges.com, and provides internal investigation and privilege consulting services to in-house legal departments.
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