Rightly or wrongly, courts find it more difficult to apply the attorney-client privilege. See, e.g., Adair v. EQT Prod. Co., 285 F.R.D. 376, 380 (W.D. Va. 2012) (“the privilege should not be applied to protect any and all documents routinely routed through corporate counsel for little, if any, legal purpose.”). One result of this skepticism is a host of judicial opinions stating that merely copying in-house counsel on a communication is not sufficient to establish the privilege. See, e.g., Kleen Prods. LLC v. Int’l Paper, No. 1:10-cv-05711, 2014 U.S. Dist. LEXIS 163987, *11 (N.D. Ill. Nov. 14, 2014) (“the mere fact that [in-house counsel] may have been copied on a given communication does not automatically transform the contents of that message into a privileged request for legal advice.”).
However, while simply copying counsel is not enough to establish privilege, does the fact that counsel were only copied along with other employees necessarily defeat the existence of the privilege? This was the issue recently addressed by an Ohio court in Morgan v. Butler, 10th Dist. No. 16AP-488, 2017-Ohio-816.
Morgan involved a complaint by a member of the public to Ohio Environmental Protection Agency (“OEPA”). In the course of investigating the complaint, an OEPA supervisor sent three emails to EPA staff members. Two lawyers working in the EPA’s Office of Legal Services were copied on the emails. During subsequent litigation, the complaining party sought the emails and the OEPA objected on the grounds of privilege. The administrative body hearing the complaint ordered the documents produced, finding that the emails did not seek legal advice and therefore the privilege did not apply.
The OEPA appealed and the appellate court reversed. The Tenth District Court of Appeals found that while the emails themselves did not demonstrate that legal advice was being sought, an affidavit by the supervisor testifying that he was seeking legal advice was sufficient to establish their purpose. The Court of Appeals also found the timing of the emails to be significant. Although the Court found that there was a non-legal purpose to the emails, the fact they were created after the complaint was filed suggested there was a legal purpose to the emails as well. Finally, without explicitly addressing the issue, the Court rejected the notion that a communication must be solely for the purpose of obtaining legal advice for the privilege to apply, holding that “the privilege does not require that the communication pertain purely to legal advice.” Id. at ¶ 22.
Thus, even though copying an attorney is not enough by itself to establish the attorney-client privilege, the fact counsel is only copied is not necessarily fatal to a privilege claim. Indeed, even communications between non-lawyers can be protected by the privilege if the purpose of the communication is to facilitate receiving legal advice. See, e.g., Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227, 2016 U.S. Dist. LEXIS 91109, *10 (D. Kan. July 13, 206). The key is establishing that the purpose of the communication is to obtain legal advice, not necessarily the form of the communication itself.
Although the OEPA was ultimately successful on its privilege claim, the outcome was much closer than it needed to be, and could easily have gone the other way. While merely copying counsel might be sufficient in some cases when there is an evidentiary record showing that the purpose of the communication was to obtain legal advice, the better practice remains to explain in the communication itself that legal advice is being sought. In addition, whenever possible communications seeking legal advice should be sent directly to counsel and kept separate from communications with other purposes.