The attorney-client privilege protects communications made in confidence by a client to its attorney for the purpose of obtaining legal advice. The privilege can extent to consultants and experts hired by the attorney on behalf of a client so long as the communication involves the subject matter about which the attorney was consulted and the consultant or expert was retained by the attorney to assist the attorney in providing legal advice to the client.
A recent decision out of an Indiana federal court shows the limitations of the attorney-client privilege in this context, wherein communications made in the routine course of business that contain no privileged information and that are devoid of legal advice or requests for advice are not protected and can be discovered.
Valley Forge Insurance Company v. Hartford Iron & Metal, Inc. (N.D. Indiana, Case No. 1:14-cv-00006-RLM-SLC, April 14, 2017) involved a dispute between an a scrap metal recycling company and its insurer regarding the parties rights and duties in connection with an environmental clean-up site on the recycler’s property. The court was asked to conduct a review of some 185 emails the recycler withheld as privileged in response to discovery requests by the insurer. The emails involved communications between the recycler, its attorney, and environmental consultants the attorney hired to inspect storm water collection and treatment systems, identify issues, implement solutions, and conduct certain site remediation work.
In hiring the consultant, the attorney explained that the requested work was for the purpose of facilitating legal advice to the recycler and that all written communications should be marked as “Confidential: Privileged Attorney-Client Communication.” The recycler thus claimed that all of the withheld emails were protected by the attorney-client privilege because they were confidential communications between its attorney and an agent hired by the attorney to aid the attorney in providing legal advice to the recycler. The insurer disagreed, asserting that the primary purpose in retaining the environmental consultant was not to provide legal advice but to design and construct a new storm water control system.
The court agreed with the insurer, finding the evidence reflects that the recycler’s attorney retained the environmental consultant for the primary purpose of providing environmental consulting advice and services in designing and constructing a new storm water management system, not because the recycler’s attorney needed them to translate information into a useable form so that the attorney could provide legal advice. The court explained that retention or employment by an attorney is alone insufficient to bring the consultant within the scope of the attorney-client privilege.
“What is vital to the privilege,” the court explained, “is that the communications be made in confidence for the purpose of obtaining legal advice from the lawyer.” When a client’s ultimate goal is not legal advice but rather is accounting, medical, or environmental advice, the attorney-client privilege does not apply. Labeling communications as “privileged and confidential” does not render documents privileged when they contain no communication made for the purpose of providing legal advice.
