By Wesley W. Horton
It is easy to pass over Harrington v. Freedom of Information Commission, officially decided by the Supreme Court on September 6, as of little general interest to the practice of law because it concerns review of an agency decision. But in fact it is of considerable general interest because the Supreme Court starts its decision by stating that, when a lawyer gives legal advice mixed with business or other nonlegal advice, the applicability of the attorney-client privilege is an issue of law.
The usefulness of Harrington is that it helps us decide how far the client can go in asking for nonlegal advice, and how far lawyers can go in giving it, and still be within the attorney-client privilege.
Here are some Harrington pointers:
- If the primary purpose of the communication is legal, then that communication is privileged. So think about the primary purpose before communicating.
- If the primary purpose is nonlegal, the incidental legal part still may be privileged if it can be separated out. So structure such a communication in a way that the legal and nonlegal aspects are not commingled.
- An internal communication between employees of a client, with a cc to the company’s lawyer, is a sure-fire indication that the primary purpose is not the seeking of legal advice.
- A communication from a client to the lawyer keeping the lawyer up-to-date on business developments that might become relevant to future legal advice is not likely to be privileged. Rather the client must explicitly or implicitly seek legal advice at the time of the communication.
- Advocating for the passage of a statute is not likely to be privileged unless the lawyer “gives advice that requires legal analysis of legislation,” which is a bit circular. The point is that simply acting as a lawyer/lobbyist is not sufficient to invoke the privilege.
Altogether, in spite of some circularity, Harrington needs to be read by all lawyers who wish to rely on the attorney-client privilege. If you are reading this blog, it probably means you.