The attorney-client privilege protects communications primarily motivated by clients' request for legal advice, and lawyers' response. Although old and absolute, the attorney-client privilege undeniably hampers the justice system's search for truth. So the protection is narrow and fragile.
In IQL-Riggig, LLC v. Kingsbridge Technologies, the court dealt with tax-related communications between Nelson Mullins law firm lawyers and "Meilinger, an accounting firm [hired] to prepare and file [plaintiff]’s tax returns." No. 19 CV 6155, 2021 U.S. Dist. LEXIS 58939, at *2 (N.D. Ill. Mar. 29, 2021). After noting that "tax preparation services are accounting services, [so] communications relating to those services are not protected under the attorney-client privilege," the court held that even "emails between Nelson Mullins attorneys regarding work performed by Meilinger" were not protected by the attorney-client privilege. Id. at *5, *6-7. The court explained that "[c]ommunications between attorneys at the same firm may qualify for the attorney-client privilege only if they reflect privileged information relating to communications to or from the client." Id. at *7. The court bluntly criticized Meilinger for arguing that such internal law firm communication did not waive privilege protection – noting that "without showing that the privilege applies, focusing on waiver amounts to putting the cart before the horse." Id. at *8.
This proper analysis might surprise some lawyers. Several courts go even further, declining to extend privilege protection even to lawyers' communications to their clients – unless those communications reflect (and in some courts unless they contain) confidences those clients conveyed to their lawyers primarily for the purposes of seeking legal advice.
Published June 8, 2021.
