Sometimes it takes a judge to decide whether the attorney-client privilege applies, even in high-stakes cases with high-powered attorneys and their biggest clients.
Executives’ email chains may have been inspired by an attorney’s advice, for example, but if the attorney isn’t actually involved in the conversation, privilege may not apply, said Colin Kelly, partner in Alston & Bird’s Litigation & Trial Practice Group.
“Sometimes you’ll see long strings of communications where there isn’t a lawyer involved, but where the communication was initiated pursuant to a counsel’s request,” Kelly said. “It becomes difficult to protect that.”
Clients can’t simply copy an attorney to protect the email chain.
“Most states are clear that simply sending a document to your in-house or outside lawyer — or including an in-house lawyer, who wears many hats, in an email thread — doesn’t mean it’s covered by attorney-client privilege,” Kelly said.
And just because an email is marked privileged doesn’t mean it is. The email must have an attorney’s mental impressions or legal strategies or advice to survive a court challenge.
“So many things are marked privileged that aren’t necessarily privileged,” Kelly said. “There’s an overreliance that just because something is tagged that way in an email, that it’s somehow cloaked in privilege. You still have to make sure that subject justifies it, and that varies state by state.”