United States: Beyond Politics: Attorney-Client Privilege And Work Product Protection

What Evidentiary Privileges Apply When a Lawyer Is Also a Professor and When a Lawyer Acts as Both Legal Counsel and Political Advisor?

Highlights

• In advising a client, a lawyer may take into account and refer to "moral, economic, social and political factors that may be relevant to the client's situation." The questions addressed in a federal district court's recent opinion in Eastman v. Select Committee to Investigate the January 6 Attack on the U.S. Capitol include whether such advice is protected by the attorney-client privilege and work product doctrine.
• If a lawyer acts as both litigation counsel and a political advisor to his client, to what extent do these evidentiary privileges apply? The Eastman opinion provides an obvious answer: Evidentiary privileges apply if, but only if, the proponent of the privilege can demonstrate that each required element of the privilege is met.
• Special care should be taken by lawyers who are also professors or who are employed by entities that are not law firms but permit their lawyer-employees to represent clients to evaluate whether their email accounts with their employers are a "confidential" means of communicating with their clients.
• This Holland & Knight alert does not address all of these issues in the Eastman case in detail, but instead focuses on an overview of the case as a whole and provides several takeaways and considerations for lawyers who are asked to take on a role in addition to that of legal counsel.

American Bar Association Model Rule 2.1 and its state law equivalents recognize that in advising a client, a lawyer may take into account and refer to "moral, economic, social and political factors that may be relevant to the client's situation." The questions addressed in the U.S. District Court for the Central District of California's recent opinion in Eastman v. Select Committee to Investigate the January 6 Attack on the U.S. Capitol¹ include whether such advice is protected by the attorney-client privilege and work product doctrine. If, for example, a lawyer acts as both litigation counsel and a political advisor to his client, to what extent do these evidentiary privileges apply?

The Eastman opinion gives the obvious answer: Evidentiary privileges apply if, but only if, the proponent of the privilege can demonstrate that each required element of the privilege is met. Nonetheless, there are many reasons to read the Eastman opinion, including: the discussion of whether the use of a university email prevents or waives confidentiality between a law school professor and a client if the university has a policy permitting it to monitor the professor's emails; the application of the attorney-client privilege and work product doctrine when a lawyer acts as both litigation counsel and a political advisor; the application of the crime-fraud exception to the "Stop the Steal" strategy; and what may constitute a "compelling need" of a congressional investigative committee sufficient to override a work product claim.

Background

Dr. John C. Eastman is a former professor and former dean of Chapman University School of Law (Chapman). He has been described as a preeminent scholar in election law, and he represented then-President Donald Trump's campaign in at least one of the lawsuits that followed the 2020 election results. Eastman is also, allegedly, one of the masterminds of the "Stop the Steal" strategy used by the Trump campaign and his supporters after President Trump's loss.

In 2021, the U.S. House of Representatives created a Select Committee to "investigate and report upon the facts, circumstances, and causes" of the Jan. 6, 2021, attack upon the U.S. Capitol Complex during the Joint Session of Congress to certify the results of the 2020 election. That committee has issued several subpoenas for documents and testimony to persons and organizations associated with President Trump's efforts to stall the certification of the electoral vote. Several subpoena recipients have refused to produce documents to or testify before the Select Committee.

On Nov. 8, 2021, the Select Committee subpoenaed records and communications from Eastman. In response to the subpoena, Eastman asserted his Fifth Amendment privilege and refused to produce any documents.

On Jan. 18, 2022, the Select Committee issued a subpoena to Chapman that sought production of any documents and communications stored on the university's servers that related to the 2020 election or the Joint Session of Congress on Jan. 6, 2021.

Two days later, Eastman filed a complaint asserting that the documents were protected by President Trump's attorney-client privilege, as well as by the work product doctrine, and that President Trump had not waived either protection. The district court issued a temporary restraining order prohibiting the production of the documents, but it ordered Eastman to review the more than 19,000 documents identified by Chapman and prepare a privilege log. The court further ordered Eastman to begin with documents created during the period of Jan. 4-7, 2021. Eastman then asserted privilege over 111 documents, and the Select Committee challenged his designation.

Opinion

Potentially Work Product-Only Documents

The court held that the attorney-client privilege did not apply to documents for which Eastman had not met his burden of showing that the communications were between him and President Trump or an agent of President Trump. The court then turned to whether or not the work product doctrine applied. As the court noted, work product protection is available for documents 1) prepared in anticipation of litigation or for trial, 2) by or for a party or its representative. Documents that are prepared for more than one purpose may still be protected by the work product doctrine if the primary purpose for the document's creation relates to pending or anticipated litigation.

To determine whether the documents and communications were prepared in anticipation of litigation, the court separated the documents into seven categories:

• Non-substantive documents (10). This category included the items that e-discovery software often separates from the parent document, such as embedded logos and photos from an e-mail signature block. The court held without further analysis that these documents do not qualify for work product protections.
• Documents related to the plan to convince then-Vice President Mike Pence to reject or delay counting electoral votes (22). This category of documents discussed strategies that could 1) be taken by the vice president without asking permission from the legislature and 2) be used to convince Vice President Pence to take the actions. The court found that 21 of these documents were not created for pending or anticipated litigation. The only mention of potential litigation in these documents was a dismissive comment by Eastman that the legal theories he used to support the vice presidential action plan would likely be rejected "9-0" by the U.S. Supreme Court. The court found that this was insufficient, and that "[t]he true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6." The last remaining document in this category was a memorandum prepared by Eastman that contemplated and mapped out different litigation strategies, including a path to the Supreme Court and an assessment of the impact of different judicial outcomes. The court held that despite Eastman's dual political and litigation-focused reasons for creating the document, this document was created in anticipation of litigation.
• Documents that discuss or analyze alleged election fraud at the state level (19). This category of documents included communications and documents related to the opinions of state legislators, seeking assistance from federal officials, general concerns about election fraud, and technical analyses of alleged voter fraud and voting machine irregularities. The court held that these documents were not created in anticipation of litigation. Although Eastman's privilege log identified the technical analyses as "comm with counsel and expert re fact evidence," the court determined that the potential dual purposes for the documents' creation - "to support state court litigation" on the one hand and "to persuade legislators and Vice President Pence to act" on the other - and the content of the emails, which did not mention litigation at all, suggested that the primary purpose for the documents' creation was to support the Trump campaign's "Stop the Steal" political strategy.
• Documents created for Congress (17). This category includes documents that were expressly prepared for members of Congress and do not reference litigation. The court held that these documents were not created in anticipation of litigation.
• Documents connecting third parties (20). This category of documents was described as "predominately administrative" and included resumes from volunteers and contact information for various parties. These documents did not discuss how these third parties might contribute to any potential litigation, and the court held that they were not prepared in anticipation for litigation.
• Documents related to news or press releases (9). This category of documents included articles and press releases sent between Eastman and others as well as limited commentary unrelated to litigation. The court held that these documents were not prepared in anticipation of litigation.
• Documents clearly related to the litigation (14). The court held that all but two of the documents in this category - copies of orders issued by other courts - were prepared in anticipation or in connection with litigation and could thus be withheld. The court also held that the Select Committee had not shown a compelling need because, among other things, cases finding a compelling need in such situations are typically cases in which the attorney's own good or bad faith was central to a legal claim or defense. Having reviewed the documents in camera, the court concluded that it was not "pivotal" to the investigation that the Select Committee receive the 12 documents in this category that the court held to be subject to work product protection.

All in all, the court held that 13 of the 111 documents were prepared in anticipation of litigation. It further held that these 13 documents had been prepared for or by Eastman or by another representative of President Trump, and that they were subject to work product protections.

The court then analyzed whether work product had been waived. As the court stated, work product protection is "only waived when attorneys disclose their work to an adversary or a conduit to an adversary in litigation." The Select Committee argued that two of the documents had been disclosed either in other court filings or to the media. The court agreed that work product protection over those documents had been waived. The Select Committee also argued that Eastman knew that Chapman had a policy that permitted it to monitor employee email and respond to lawful subpoenas, and that the use of Chapman email system therefore meant that work product protection was not available. Finally, the Select Committee asserted that the crime-fraud exception applied to compel. The discussion of the university email issue and the crime-fraud issue is contained below.

Potentially Attorney-Client Privileged Documents

Separate and apart from its analysis of work product, the court noted that attorney-client privilege can apply to communications between attorney and client (or between agents of attorneys and agents of clients) in aid of obtaining legal advice.

In an attempt to defeat a claim of attorney-client privilege and work product protection, the Select Committee argued that the use of the Chapman email system was inconsistent with any claim of a reasonable expectation of confidentiality for attorney-client privilege purposes or preventing access to documents by adversaries as is required for work product protection. The court disagreed, holding that Eastman had reasonably believed that there was an expectation of confidentiality and that it would not be fair to impose on a client the duty to inquire about whether a lawyer-professor's use of a university email system might lack sufficient confidentiality protections.

With regard to the crime-fraud exception, the court noted that under longstanding case law, it was applicable both to claims of attorney-client privilege and to claims of work product protection. The court also noted that under longstanding case law, the evidentiary standard to be used in evaluating a crime-fraud claim is a preponderance or more-likely-than-not standard. On the basis of the record before it, the court apparently had little trouble concluding that while the Select Committee had met its burden of showing that it was more likely than not that a crime or fraud was committed, most of the communications exchanged between Eastman, President Trump and President Trump's representatives were not in furtherance of that crime or fraud and therefore the protections of the attorney-client privilege and work product doctrine were not waived. The court did find, however, that one of the documents was created in furtherance of the crime or fraud and must therefore be produced to the Select Committee.

For those who have lost count, the court ultimately ordered Eastman/Chapman University to produce 101 of the 111 emails for which Eastman had asserted an evidentiary privilege.

Takeaways

The "lessons to learn" from this case include the following:

• Whenever a lawyer is asked to take on a role in addition to that of legal counsel (such as political advisor), the lawyer should review in advance with the client how any multiple roles may affect attorney-client privilege or work product protection.
• In such situations, the lawyer and client may wish to take particular care to decide which documents pertain to which role. If nothing else, this may reduce the time and cost subsequently incurred in defending against a motion to compel.
• Although the court upheld attorney-client privilege and work product protection notwithstanding the use of the Chapman email system, lawyers and clients would be well advised to use a more clearly confidential email system and avoid this kind of risk in its entirety.
• Even though it was critical to the decision only as to a single document, the crime-fraud exception has real teeth and is met by a preponderance standard. In addition, and where a claim by an adversary of crime-fraud exception may be anticipated, it may be helpful for the lawyer to consider making the lawful and non-criminal purposes clear in the document.
• Although not discussed in this analysis, lawyers and clients should be aware that public statements about legal issues may color the judicial view of what the lawyer and the client did or did not intend.

Footnote

1 C.D. Cal. Case No. 8:22-cv-00099-DOC-DFM (Dkt. 260) (March 28, 2022).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.