Attorney-Client Privilege — Retainer Agreements Are Not Privileged unless They Reveal a Confidential Communication of Legal Advice, Nor Are They Protected as Work Product

In re MI Windows & Doors, Inc., Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001 (D.S.C. June 12, 2013) (Capra, Special Master):

This is a class action retainer agreement signed by Wani. Retainer agreements are not privileged, however, unless they reveal a confidential communication of legal advice — the identity of the client, the fee arrangement, and the fact of retention are not privileged because they only involve the incidents of representation. See In re Grand Jury Subpoena, 204 F.3d 516 (4th Cir. 2000) (retainer agreement not protected by the privilege). See also Lawfinders Associates, Inc. v. Legal Research Center, Inc. 193 F.3d 517, 518 (5th Cir. 1999) (“the attorney-client privilege does not protect the type of information contained in the retainer letters. See, e.g., United States v. Davis, 636 F.2d 1028, 1043-44 (5th Cir. Unit A Feb. 1981) (stating that attorney-client privilege only extends to communications related to the rendition of legal advice and holding that ‘[f]inancial transactions between the attorney and client ... are not within the privilege’)”); Bowman v. Green Tree Servicing, Inc., 2012 WL 4849616, at *3 (N.D. W. Va.)(“[T]he retention agreement between Plaintiff and her counsel is not privileged. The authority is unanimous for the proposition that ‘in the absence of unusual circumstances, the fact of a retainer, the identity of the client, the conditions of employment and the amount of the fee do not come within the privilege of the attorney-client relationship.’ In re Semel, 411 F.2d 195, 197 (3d. Cir.1969); see also NLRB v. Harvey, 349 F.2d 900, 904–05 (4th Cir.1965); United States v. Pape, 144 F.2d 778, 782–783 (2 Cir.1944); Wirtz v. Fowler, 372 F.2d 315, 332–333 (5th Cir.1966); In re Wasserman, 198 F.Supp. 564 (D.C.Cir.1961). The Court can find no unusual circumstances in this case to depart from this well established rule.”). Upon review of the retainer agreement, the Special Master does not see anything in it that reveals any confidential communication about the legal matter — as stated above, Wani’s motive for seeking representation is not a secret. In an excess of caution, the Special Master rules that if the Homeowner Plaintiffs want to claim privilege for any specific statement in the retainer agreement, they have leave to do so. But the broad-brushed claim of privilege must be denied.

The Homeowner Plaintiffs also rely on work product, but “[w]ith respect to the retainer agreement, courts have repeatedly held that attorney retainer agreements, just as with the attorney client privilege, are not protected by the work product doctrine.” Id. See e.g., Mordesovitch v. Westfield Ins. Co., 244 F.Supp.2d 636 (S.D.W.V.2003); Stanley v. Bayer Healthcare LLC, 2011 WL 5569761 (S.D. Ca. Nov. 16, 2011); Fransen v. One World Tech. Co., 2010 WL 5069490 (D.N.J. Dec. 6, 2010); Monroe's Estate v. Bottle Rock Power Corp., 2004 WL 737463 (E.D.La. Apr. 2, 2004); Thompson v. Cincinnati Ins. Co., 2010 WL 4667100 (N.D.Fl. Nov. 9, 2010). The Special Master sees no reason to depart from the overwhelming authority on this subject.

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