Is General Advice from an Attorney Privileged?

Attorneys consistently provide guidance to clients, but not all of the consultation may be considered legal advice. Often an attorney’s role extends beyond the boundaries of legal advice and into other topics such as general business advice. When this occurs, the definition of what constitutes “legal advice” can become blurred, which has implications on privilege. In the recently released decision in Harrington v. Freedom of Information Commission, et al., the Connecticut Supreme Court examined this issue in detail.  According to the court, the case “provides an opportunity to address the circumstances under which communications relating to both non-legal and legal advice may be covered by the attorney-client privilege.”

In Harrington, the plaintiff sought the disclosure of e-mails between two Connecticut attorneys/lobbyists and the defendant. Both of the attorneys are employed by Connecticut law firms under contract to provide legal services to the defendant. The Freedom of Information Commission ultimately determined the requested materials were exempt from disclosure under the Freedom of Information Act, due to the e-mails being subject to the attorney-client privilege.

The Commission noted that, although communications between the two attorneys and the defendant were not strictly legal, and even though the attorneys were retained as “consultants,” the nature of the communications resulted in the “blurring of business and legal advice.”  Applying the four-prong test set forth in Shew v. Freedom of Information Commission, 245 Conn. 149, 714 A.2d 664 (1998), the Commission concluded that the communications should be protected pursuant to the attorney client privilege. The Commission determined in part that many of the communications between the defendant and the attorneys were privileged as they were exchanged for the purpose of “keeping counsel apprised of ongoing business developments, with the expectation that the attorney would respond in the event the matter raised a legal issue.”

The Connecticut Supreme Court reversed on appeal. In its ruling, the Supreme Court stated that “it’s not enough for the party invoking the privilege to show that factual information might become relevant to the future rendering of legal advice.  Instead, the communication must also either explicitly or implicitly seek specific legal advice about that factual information.”  Essentially, simply because a client seeks advice from its attorney regarding business matters which may someday require more sensitive legal advice, does not mean that those initial inquiries are privileged.

The Connecticut Supreme Court, in its’ decision, noted that “the line between legal advice and business advice, however, is not always clear.”  This is a concept that all attorneys, and their clients, should take to heart. When a client seeks advice from an attorney, or when an attorney provides counsel to a client, care should be taken to delineate the legal from the non-legal advice, or to otherwise make sure that any legal inquiries are directly framed as such.  Otherwise, a lack of clarity could lead to those discussions being fair game for a future request for production.