As a cornerstone of legal practice, attorney-client privilege is typically provided under the premise that at least one attorney must be involved in the process or the communication for the privilege to apply. However, it may surprise many professionals that there’s an exception to this rule, particularly when individuals carry out legal work for clients in jurisdictions where they’re not licensed to practice law.
Per the provisions stated in Fla. Stat. Ann. § 90.502, a ‘lawyer’ in the context of attorney-client privilege is defined as any person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation. To illustrate, Florida courts have applied this privilege to communications even with those not authorized to practice law in any jurisdiction or state – so long as the client reasonably believed that they were interacting with an authorized legal practitioner.
Other courts across the nation have similarly upheld this principle. The Eastern District of Wisconsin, for example, noted that any client’s communications to an attorney would retain its privileged status, even if the attorney’s advice might technically amount to unauthorized practice of law in a different jurisdiction.
Furthermore, the Middle District of Pennsylvania has found privilege applicable to interactions with a member of the California bar who was potentially involved in unauthorized practice of law in Pennsylvania. Federal courts in Minnesota and Nevada have also reached similar conclusions.
Underlining this trend, the Southern District of New York dismissed the assertion that the person engaged in communication should be “actually authorized to engage in the practice of law” for the privilege to be applicable. In stark contrast, as long as “the client has a bona fide belief that its consultant is in fact an attorney,” privilege may well be warranted.
On the corporate front, these principles could potentially be of substantial importance. Companies frequently require legal advice across many states, yet might not have the resources to hire attorneys admitted to the bar in every jurisdiction. As such, ABA Model Rule 5.5 permits in-house attorneys admitted in one jurisdiction to “provide legal services through an office or continuous presence in [another] jurisdiction.”
This serves as assurance to both legal professionals and their clients alike – while the burden still remains on the party claiming privilege to effectively establish the essential elements of a privileged relationship, fairness is preserved and the law acknowledges their reasonable actions under their circumstances.