The Christ Hospital whistleblower case in Cincinnati has made headlines for a number of reasons recently. Most recently, the District Court for the Southern District of Ohio (Magistrate Judge Black) ruled on the hospital’s assertion of the attorney-client privilege to prevent its having to turn over certain documents. At issue were three documents that The Christ Hospital (the Hospital) refused to turn over to the whistleblower, Dr. Harry Fry. The documents at issue were:
(1) Handwritten notes taken by the hospital’s chief nursing officer (a non-lawyer) during a conversation with another non-lawyer “regarding operational issues to be discussed with counsel and regarding which confidential legal advice was subsequently obtained”;
(2) More handwritten notes taken by the Hospital’s chief nursing officer during a meeting with two other non-lawyers “discussing confidential legal advice provided by counsel”; and
(3) Minutes from the Hospital’s cardiology section meeting “reflecting communication with counsel for purposes of facilitating confidential legal advice.” The Court rejected the Hospital’s claim of privilege with respect to the first two documents, but protected the information contained in the third document.
The Court’s reasoning is important for hospitals and other entities to keep in mind when dealing with advice of counsel and how that information is used and shared within your organization.
In holding that the first document was not privileged, the Court stated that in order to be protected, “communications between non-attorney corporate employees must be made in order to secure legal advice from counsel.” In other words, the communications between the non-lawyers must be in preparation for, and with the intent of seeking legal advice. In rejecting the Hospital’s assertion of privilege, the Court explained that the evidence presented by the Hospital did not show a causal link between the communication between the non-lawyers and a later communication with a hospital attorney nor did the non-lawyer communication reflect intent to seek advice from legal counsel.
In holding that the second document also was not privileged, the Court rejected the Hospital’s assertion that the notes in the document reflected the non-lawyers’ discussion of legal advice the Hospital had recently received. The Court noted that the Hospital did not identify who within the organization received the legal advice from outside counsel, only that outside counsel provided legal advice to an unidentified member of the Hospital’s organization. The Court rejected the unsubstantiated assertion as being “exactly the type of … assertion that does not carry [the hospital’s] burden to establish applicability of the privilege.”
In holding that the third document included a privileged communication, the Court analyzed the relationship of the recipient of the legal advice as well as the disclosure of that advice to other members of the Hospital’s cardiology section and concluded that the legal advice remained privileged. According to the Court’s decision, the statements made at the section meeting by the Hospital’s chief of cardiology were privileged because:
- Although not a hospital employee, as an independent contractor he held a role similar to that of an employee, and, therefore, “communications between the contractor and attorneys for the purpose of seeking legal advice are privileged”; and
- The privilege was not waived when the chief of cardiology discussed the legal advice during the section meeting since:
- he did not have the power to waive the Hospital’s attorney-client privilege since he was not a corporate officer or board member; and
- privileged communications may be conveyed to representatives of the corporation without losing the privilege. The Court specifically noted that the chief of cardiology made clear to the meeting attendees that “he was disclosing legal advice ‘per legal counsel,’” and was recorded as such in the meeting minutes.
The Court’s decision in this case provides very helpful guidance to ensure that attorney-client communications remain confidential.
- Communications among non-lawyer corporate employees may be protected from disclosure even if an attorney is not present, but only if the “dominant intent” of the communication among the non-lawyers is to prepare to seek legal advice on behalf of the corporation (e.g., a pre-meeting or conference call).
- Communications among non-lawyers will not be protected from disclosure based solely on an assertion that legal advice was discussed in the course of such communication – more detail about the legal advice (e.g., who gave it, who received it) is needed to establish the applicability of the attorney-client privilege.
- Discussions between an organization’s independent contractor and its legal counsel may be protected if the independent contractor held a role similar to that of an employee, and further disclosures of those privileged communications to other “representatives of the corporation” do not waive the privilege, particularly where it is made clear that advice of legal counsel is being shared.
This most recent decision in The Christ Hospital whistleblower case makes clear it is essential that any written communications (including emails and notes taken during meetings) discussing legal advice or the intent to seek legal advice about an issue include enough information to establish that legal advice was discussed or that an intent to seek it existed. A mere assertion later that such intent existed or that legal advice was discussed, without more explicit evidence, may not be sufficient to protect the document from discovery under the attorney-client privilege.