Ethical Considerations Regarding Paralegals and Privileged Communications-Client Privilege

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

As paralegals, we are frequently responsible for transmitting questions and confidential information from clients to attorneys, and advice and guidance from attorneys to clients. Paralegals are often more available to clients than busy attorneys and have more access to the attorneys handling the matter. Paralegals also have lower billing rates, so if a conversation with a client will take a few minutes, it will be less expensive to have the conversation with the paralegal.

All information regarding legal matters is confidential and some of the information will also be considered privileged. Attorney-client privilege is a wellestablished doctrine of common law. The required elements are as follows:

• a statement that seeks or provides legal advice
• made between an attorney and the attorney’s client
• made in confidence
• for the purpose of seeking, obtaining, or providing legal assistance to the client

Several federal decisions have clarified when communications between a nonattorney and a client may be considered privileged. The federal courts have elucidated that the communication must have been made for the purpose of obtaining legal advice from the attorney. The elements required for a communication to be subject to attorney-client privilege is another reason why it is important to make clear to clients when advice and guidance is coming from the attorney. Statements such as “I passed along your question to attorney _______ and she advised . . .” or “I spoke to attorney ________ who asked me to tell you . . .” will alert the client that the information is from the attorney, not the paralegal. Such clarifications also help paralegals avoid claims that the paralegal is engaging in the unauthorized practice of law. (Of course, this assumes paralegals have actually consulted their attorneys regarding the appropriate responses to the clients.)

Communications with clients can be an especially complicated area for non-attorneys who provide guidance to clients without constant involvement of attorneys, such as within a corporation. In HPD Laboratories v. The Clorox Company, 202 F.R.D. 410 (D.N.J. 2001), HPD filed a motion to compel discovery of communications between a paralegal and the business people. The Clorox paralegal’s job duties included advising the business people regarding marketing and regulatory matters. Clorox argued that the communications were privileged. However, the judge ruled that under federal law, these communications did not meet the criteria of privileged communications. Since the business department did not consult with the paralegal for the purpose of obtaining legal advice from an attorney, and the paralegal gave her advice independently rather than assisting the attorney in formulating and providing legal guidance, the judge’s decision was that the communications did not meet the required elements to be considered privileged.

Although the Clorox case involved an in-house paralegal, the same issues are also a concern for paralegals who work in law firms. Paralegals and attorneys should not assume all communications between nonattorneys and clients automatically meet the criteria to qualif y as privileged. Clients may assume every communication they have with anyone in the attorney’s office is not only confidential, but also privileged. Legal teams should take care that all privileged communications meet the legal requirements.

Written communications that include legal advice should be signed by an attorney. If legal advice is being sent to a client via email from the paralegal, the attorney should be copied on the email and the email should be worded to make it clear the advice is coming from the attorney.

Ultimately, it is the responsibility of attorneys, with assistance from paralegals, to ensure any privileged communications meet the requirements to be designated as privileged, and will be likely to withstand legal scrutiny and challenges.

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.