The attorney-client privilege is a centerpiece of American jurisprudence. It aims to promote candor in communications and allows clients to confide in their attorneys, secure in the knowledge that the communication will not be shared. However, a word of caution — the privilege does not apply to any and all communications with counsel.
On March 21, 2022, the United States Department of Justice (DOJ) and 14 state attorneys general asked a federal court to sanction conglomerate Google for misusing attorney-client privilege to hide emails from litigation and unfairly “camouflage thousands of documents from scrutiny.” As part of an antitrust lawsuit commenced in October 2020 in federal court for the District of Columbia, the DOJ filed its motion for sanctions alleging that Google’s internal “Communicate-with-Care” program falsely applies the attorney-client privilege to protect and withhold communications that are not truly privileged.
In particular, the motion alleges that, as part of its Communicate-with-Care program, Google trains employees to copy an attorney and add a privilege label and a generic request for counsel’s advice to sensitive business communications. These emails often include only generic statements of “adding legal” or “[attorney], please advise” without any specific request for legal advice. The DOJ alleges that the Google attorney rarely responds at all, let alone with privileged legal advice, and the requesting individual does not follow up. For instance, in one March 2020 email, a Google vice president included an attorney in an email about business negotiations. The attorney responded to none of the roughly 25 emails in the string and was eventually dropped from the email thread entirely. The DOJ argues that these facts confirm that the attorney’s inclusion was not for the legitimate purpose of seeking legal advice — as required by the attorney-client privilege — but as a sham.
Google has denied any wrongdoing and, in a filing on March 24, 2022, argued that the government’s allegations are unfounded. Google claims its Communicate-with-Care program is legitimate and encourages employees to think carefully about what they reduce to writing in order to protect sensitive and sometimes privileged communications. Google agrees, and contends that it teaches employees, that “just adding a lawyer to an email/document doesn’t guarantee that it will be protected by the privilege.”
Google is correct. Adding an attorney to an email does not “guarantee” protection by privilege. In fact, simply adding an attorney to an email does not invoke the attorney-client privilege at all. Rather, the privilege extends only to communications with counsel for the purpose of obtaining legal advice. Correspondence with your attorney will be protected by the attorney-client privilege only if the communication is for the purpose of seeking legal advice from the lawyer in their professional capacity and it is made in confidence.
If you have any questions or concerns regarding attorney-client privilege or a dispute or litigation matter, please contact Andrea Bernard, Michael Brady, Amanda Fielder or a member of Warner’s Litigation and Dispute Resolution Practice Group.