The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?
In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.
Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.