Many clients assume that the attorney-client privilege will almost always automatically protect any law firm’s report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other common client assumptions, this overly optimistic view is frequently wrong.
In U.S. Bank National Ass’n v. PHL Variable Insurance Co., defendant PHL withheld from production a 39-page report written by three lawyers from the law firm then known as Bracewell & Guiliani — supporting its privilege and work product claim with a declaration that it retained Bracewell & Guiliani “for the purpose of seeking legal consultation, advice and counsel.” Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *3 (D. Minn. Mar. 30, 2016). But the court rejected both claims. Among other things, the court pointed to non-protected emails, undoubtedly written by the defendant’s business folks — announcing that the company had hired Bracewell & Guiliani “‘to review our current procedures,'” because that law firm had provided services to others “‘serious about ensuring the quality of business.'” Id. at *6 (internal citations omitted). Other unprotected client documents described the law firm’s activities as “‘consulting,'” and mentioned the firm’s recommendations about the company’s “‘business plan.'” Id. at *7 (internal citations omitted). The court also reviewed in camera the Bracewell & Guiliani report itself — noting that “the majority of the Report suggests improvements to PHL’s business practices.” Id. The court again pointed to its in camera review of the report in also rejecting PHL’s work product claim — noting that the firm’s report “was not ‘mapping litigation strategy.'” Id. at *16 (citation omitted).
Corporations hiring law firms should remember that a court might review business executives’ description of the law firm’s role, and also read the law firm’s communications.