Attorney-Client Privilege May Apply to Unlicensed Lawyer Contact

As a threshold matter, the attorney-client privilege provides that at least one attorney must be present on a communication or at least involved in a matter for the privilege to apply. But attorneys and their clients may be surprised to learn there’s an exception to that rule that allows the privilege to attach when individuals perform legal work for clients in a jurisdiction where they’re not licensed.

For example, Fla. Stat. Ann. § 90.502 defines “lawyer” for attorney-client privilege purposes as any “person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.” Florida courts have applied the privilege to communications with attorneys licensed outside the state and even individuals not authorized to practice law anywhere, so long as the client reasonably believed it was dealing with an authorized legal practitioner.

Other courts nationwide have also, as the Eastern District of Wisconsin put it, “recognized that so long [as] an attorney is licensed to practice law in some jurisdiction, then the client’s communications to him will be privileged even if the attorney’s advice might technically constitute the unauthorized practice of law in another jurisdiction.”

That court focused on the clients’ expectations, reasoning that “it would unfairly punish the client to find that a communication is not privileged simply because the attorney was not in technical compliance with the rules of professional responsibility.”

Similarly, the Middle District of Pennsylvania found privilege applied to communications with a member of the California bar who was arguably engaged in the unauthorized practice of law in Pennsylvania. Federal courts in Minnesota and Nevada also have reached the same conclusion.

Taking it a step further, the Southern District of New York rejected the assertion that for the privilege to attach the person to whom communications are made must be “actually authorized to engage in the practice of law.” So long as “the client has a bona fide belie[f] that [its] consultant is in fact an attorney,” the privilege attaches.

The Eastern District of Texas explained that to “hold [a client] to a higher standard of reasonableness would subvert the privilege by requiring clients, who are by nature ill-prepared to conduct a nuanced legal inquiry, to anticipate and resolve legal questions over the confidentiality of their communications.”

The Texas district also noted, “It makes little sense that the law demands this level of inquiry from clients, who cannot be presumed to have any special expertise in the law” and that “Form over substance is rarely favored in the law.”

This means the attorney-client privilege belongs to the client, and its applicability should be assessed from the client’s point of view.

Of course, the privilege will not apply “when the circumstances could not have reasonably suggested that the individual [ostensibly providing legal advice] was licensed.” And it remains true that “the burden is on a party claiming the protection of a privilege to establish those facts that are the essential elements of a privileged relationship.”

If the party claiming privilege fails to provide evidence that the individual providing legal advice was a licensed attorney or at least reasonably believed to be one, the claim of privilege will likely fail.

For the victims who thought that they were obtaining legal advice only to find out that their supposed attorney was not licensed to practice in the jurisdiction in question, or even worse, not authorized to practice at all, it should serve as some comfort that the law will protect their communications from disclosure pursuant to the attorney-client privilege so long as their reliance was reasonable.

And for corporations and their in-house attorneys, these principles may also be quite helpful, since companies frequently need legal advice in every state but can’t afford to employ attorneys admitted to the bar everywhere.

ABA Model Rule 5.5 permits in-house attorneys admitted to the bar in one jurisdiction to “provide legal services through an office or continuous presence in [another] jurisdiction” under certain circumstances.

Assuming a company relies on this rule in good faith in seeking advice from its in-house attorneys, it would be reasonable to assume that the attorney-client privilege would apply to those communications, regardless of where the in-house attorneys are licensed.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Andrew S. Boutros is regional chair of Dechert’s white collar practice, lecturer in law at University of Chicago Law School, and former federal prosecutor. He handles white collar matters, internal and cross-border investigations, and complex litigations.

John R. (“Jay”) Schleppenbach is counsel in Dechert’s white collar practice, representing major corporations in internal investigations and litigated matters, and a former appellate prosecutor who coaches the international arbitration moot court team at Northwestern Law.

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