11.8 BACKGROUND FACTS ABOUT ATTORNEY-CLIENT COMMUNICATIONS
11.801 Introduction. As explained above, the attorney-client privilege normally does not protect background facts about the relationship between clients and their lawyers, such as the client's identity, the general subject matter of the representation, the fee arrangement, and fees paid.
Courts have applied a similar approach to communications between clients and their lawyers.
One might wonder how an adversary could learn that the client and his or her lawyer have communicated about a certain issue. Two obvious scenarios come to mind. First, an adversary might ask questions during a deposition of the client or even a third party about whether certain privileged communications took place. A privilege objection would tee up the issue for the court to analyze privilege protection for the fact of the communication rather than its substance. Second, a litigant's privilege log might refer to the fact of a communication about a certain subject matter. This might also prompt the adversary to bring to the court's attention a dispute about the fact rather than the substance of a privileged communication.
11.802 Circumstances of the Communication. Just as the privilege normally does not cover background facts about the attorney-client relationship, the privilege usually does not protect background facts about communications between clients and their lawyers.
To be sure, some courts take a very protective approach. For instance, some courts have protected even the date of a client's communication with a lawyer. 86
Such an approach makes sense in very narrow circumstances, similar to the situations in which the privilege protects a client's or lawyer's identity (discussed above). For instance, the exact timing of a husband's email communication to a divorce lawyer might tend to demonstrate that the husband had hacked into his wife's e-mail and had just seen an email about which the husband needed the lawyer's advice. As in the protection available for a client's identity, those situations presumably arise only infrequently.
[Page 229]
Applying the less protective majority approach, courts have concluded that the attorney-client privilege does not protect the following:
| • | Date and recipients of a memorandum; 87 | |
| • | General subject matter of a meeting; 88 | |
| • | Fact of a communication between a client and a lawyer; 89 | |
| • | Date and time of a lawyer-client meeting; 90 | |
| • | Whether anyone took notes in a privileged meeting; 91 | |
| • | Fact of a meeting between a client and a lawyer; 92 | |
| • | Date of a meeting between a client and lawyer; 93 | |
| • | People present at a meeting between a client and a lawyer; 94 |
[Page 230]
| • | Date the client authorized a lawsuit; 95 | |
| • | Client's request for a meeting with a lawyer; 96 | |
| • | Date of the communication; 97 | |
| • | Fact of a conversation between a client and a lawyer; 98 | |
| • | Number and duration of meetings; 99 | |
| • | Identity of the person arranging for a meeting between a client and a lawyer; 100 | |
| • | Location of a meeting between a client and a lawyer; 101 | |
| • | Provenance of a document and the circumstances surrounding its creation. 102 |
11.803 Privilege Protection for the Fact of a Communication. A small number of courts take the opposite position, and protect as privileged even the fact of a communication. 103
This principle is contrary to the general rule that the privilege does not protect the factual circumstances of a privileged communication. However, it is easy to understand these courts' conclusion. A deposition question would presumably be
[Page 231]
objectionable if it asked either the client or the client's lawyer whether they had communicated about a particular non-protected historical fact or bit of information. Either a "yes" or a "no" answer would provide insights into undeniably privileged communications about those specific historical facts or information.
Chapter 12 of this book discusses courts' handling of privilege claims for a lawyer's actions rather than communications with clients. Chapter 42 of this book discusses opinion work product protection for a lawyer's selection of certain intrinsically non-protected documents, witnesses, facts, etc. Chapter 58 of this book discusses privilege protection for a lawyer's actions and communications during the discovery process.
11.804 Non-Privileged Background Information and the Client's Action. In most situations, courts decline to protect background facts about a client's communication with a lawyer, even though the adversary might gain some insight into privileged communications by comparing these unprotected facts and the equally unprotected fact of the client's action.
For instance, one court held that the following questions did not seek any privileged communications: "1) After legal [counsel] reviewed the letter, were changes...
