Characterizing Out RAGE LLC’s position as reflecting “a Pavlovian reaction that any communication in which the word ‘lawyer’ or ‘attorney’ is mentioned is the bell that causes the dog named Privilege to salivate” a federal judge ruled that discussions among four executives in two interrelated companies about when to “unleash” and “sic their patent attorney” on a competitor were not protected by the attorney-client privilege. No attorney was involved in the discussions, no attorney had provided any input into the discussions and no attorney had been contacted by the executives. Judge Crocker properly ruled that “non-lawyers talking about talking to their lawyer” “doesn’t cut it.” Out RAGE LLC v. New Archery Products Corporation, 3-11-cv-00701 (WIWD December 28, 2012, Order) (Crocker, M.J.).
Sadly, Out RAGE’s attempt to bury their bone of obviously embarrassing statements by invoking a claim of attorney client privilege where no privilege exists is an all too frequent phenomenon. And, since they should know better, the blame for asserting that position should fall squarely on the shoulders of lawyers who risk sanction and loss of credibility (here, opposing counsel sought almost $11,000 in attorney’s fees as a sanction). But, since it is hard to teach an old dog new tricks, it is unlikely that such lawyers will just tuck their tails between their legs and slink away.
Back to The Basics
Instead of sending the lawyers to the doghouse, consider how Out RAGE’s executives might have instead armed their lawyers with facts with which to protect their sensitive discussion. First, let’s understand the basic rule. A client has a privilege to refuse to disclose and to prevent others from disclosing confidential communications made for the purpose of obtaining or providing professional legal services to the client. While there are all sorts of exceptions to this rule, at a very minimum, in order to protect communications under the attorney client privilege, the communications must be confidential communications between the client and the client’s attorney. Because Out RAGE’s discussions did not even involve a lawyer, the judge had a legitimate bone to pick with the claim of privilege.
Instead, if Out RAGE’s executives had simply picked up the phone and engaged their lawyer in their discussion about whether and when to “sic” him on their competitor, their discussion would have been protected under the attorney-client privilege. But – should business executives have to incur the significant costs of involving their lawyer every time they expect to have a sensitive discussion? If they want that discussion to remain privileged and confidential, the answer is “yes.” Otherwise, should there be a dogfight around their decisions, they run the risk that the discussion will be revealed to the person or entity they least wanted to hear it in the first place. In short, if the sensitive discussion takes place without the involvement of your Rottweiler litigator, it will be too late to howl “Privilege.”