Written by Anne Wahlig Kaup
Often a company will issue a timely press release in response to an on-site event that has the potential to impact the local environment. In-house public relations (PR) departments are instructed to work with the company attorneys to ensure there are no inaccuracies in light of anticipated or unforeseen litigation.. A PR employee may assume that emailing the draft press release in a single email addressed to both company employees and to in-house counsel is killing two birds with one stone — seeking approval from the business team and “running it by” the lawyers. Unfortunately, little chance exists that this type of email correspondence is privileged. Even marking the email “Confidential—Attorney Client Privilege” does not prove the existence of privilege.
Recently, in Slocum v. International Paper Co., 549 F. Supp. 3d 519 (2021), the Eastern District Louisiana Court held that “for attorney client privilege to apply, legal advice must be the primary purpose of the communication.” Id. at 524. One of International Paper Company’s mills exploded, allegedly coating the facility and local residences with “black liquor.” Hours after the event, the company’s communications manager emailed a draft press release to other public relations personnel and to in-house counsel. The email’s subject line read “Privileged Atty Client Communication.” The chief communications leader answered with suggested edits and the in-house lawyers responded that the edits “look good.” Id. at 522. The court determined that the primary purpose of the email was in-house counsel’s mere participation in a public relations decision, and not to provide legal advice. The court further specified that when a corporation sends communications to both lawyers and non-lawyers, “it usually cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.” Id. at 524-525 quoting In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789, 805 (E.D. La. 2007). Even if companies face a complicated regulatory landscape, courts have still rejected “mixed purpose” communications. In re Seroquel Products Liability Litigation, No. 6:06-md-1769-Orl-22DAB (M.D. Fla. 2008).
Similarly, in Anderson v. Trustees of Dartmouth College, No. 19-cv-109-SM (2020), Dartmouth personnel forwarded emails to several employees including in-house counsel. The messages contained the words “FYI, see below” or “I sent the following email” to the plaintiff, who had been expelled through the college’s disciplinary process. Dartmouth argued that the forwarded emails were privileged because in-house counsel was expected to review and possibly respond with legal input to the emails on which they were copied. The District Court of New Hampshire didn’t bite. “Merely saying that he [counsel] was so acting in a memorandum of law is patently insufficient to meet the burden. Neither can it be assumed.” Id. at 9. The court noted that the college failed to submit an in-house lawyer’s affidavit or declaration explaining an established review practice in which in-house counsel was expected to provide advice.
Despite these cases, there is still some room to protect privilege when seeking attorney review. First, a PR employee should send a separate email to counsel, specifically asking for legal advice regarding the attached press release. This separate email request avoids a “mixed purpose” communication. Second, the attorney receiving the communication should separately respond to the PR employee and should include written affirmation of his or her role providing legal advice in response to the employee’s request. The written affirmation will help to substantiate a privileged correspondence.