The federal court for the Southern District of New York recently held that internal legal memo may not be protected by attorney client privilege in NY . Broadrock Gas Services, LLC v. AIG Specialty Insurance Co., No. 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. Mar. 2, 2015).

I strongly disagree with this decision.  A rule that limits the privilege to confidential communications between lawyer and client is too narrow.  For example, it would not protect an internal legal analysis memo or communications between lawyers and nonlawyers in the firm.    (Such communications would also not be protected by work product if they were in a business transaction and not in anticipation of litigation.).   Internal communications should be protected because they facilitate the giving of legal advice and are intended to be confidential.  If these communications are not privileged, lawyers will need to be very cautious about making any written internal communications that may express negative views about the client’s case.   Not only would this be inefficient but it would interfere with the ability of lawyers to carry out their representation.  An alternative would be for lawyers to copy their clients with everything they write to gain privilege protection.  Client communication is generally desirable as well as an ethical duty, but overwhelming clients with every document and email related to the representation is excessive.

For more information, Nathan M. Crystal