Paul Peter Nicolai
Updated: Sep 13, 2021
Does putting a lawyer on a cc line instead of the to line affect the likelihood that the email qualifies for attorney-client-privilege protection?
Some courts view emails sent directly to or from a lawyer as more likely to be privileged than emails copying the lawyer. They say merely copying a lawyer is not enough to trigger the protection.
Information on whether an attorney is copied or a direct recipient of an email, without more, does not decide whether the privilege applies. Courts have consistently said excluding attorney copied emails from protection is not a logical rule.
The deciding issue is whether the communication sought legal advice from a lawyer.
An attorney copied email could be privileged. In some cases, emails explicitly sought or concerned legal advice and were intended for the attorney, but the attorney’s email was typed in the cc field. Courts have also held that communications are implicit requests for legal advice and are protected where an attorney is copied on the communications and the communications implicate specific legal issues. For example, a lawyer may be copied on an email to provide legal advice about a response to media coverage about a specific pending lawsuit.
In some instances, the privilege can attach to communications between nonlawyers, leading courts to conclude that excluding emails where the attorney is only copied is unpersuasive as an absolute rule. It is not uncommon for a document to be given to certain personnel with lawyers copied for the purpose of informing them that legal advice has been sought.
The fact that an email is sent to many non-legal and few legal personnel is not determinative of whether it is privileged. The privilege is more likely to attach when the email is sent or copied to individuals who have a need to know the legal advice.
A recent case supports the conclusion that the distinction between attorney copied emails and direct attorney emails in terms of whether the privilege applies is minor. A privilege review in a large case showed that about 55 percent of attorney copied emails were privileged and 43 percent of direct emails were privileged.
When assessing privilege, the content and intent of the communication matter. Copying does not change that. If an email discusses a legal issue and a lawyer was clearly an intended recipient of those messages, the mere fact that the lawyer’s email address was typed in the copy field rather than the to field is irrelevant.