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The Privilege Protects Communications with your Real Estate Attorney, Right? Wrong!

November 2011
Practice: Professional Liability
Offices: Boston
People: Richard J. Rosensweig

In Re Grand Jury Subpoena, No. 10-2048, (1st Cir. Nov. 1, 2011), the Court grappled with the Grand Jury subpoena of the file of an attorney who represented a client in a real estate purchase. The lawyer prepared the deal documents and represented the client, whom the Court referred to as Mr. S in it recent 18 page decision, at the closing. Seeking to quash the subpoena, Mr S argued that the material sought is classic attorney-client subject matter. But the Court denied the motion to quash and ordered that the file be produced. In the First Circuit's 18 page decision written by Judge Bruce Selya, the Court held that characterizing the relationship is not enough to demonstrate that privilege protects communications between the client and lawyer. Mr. S failed to show that any of the documents prepared by the lawyer were intended to be kept confidential, or that they were so kept, and the Court would not assume so simply because they contained information communicated by the client to the lawyer. Moreover, the Court ruled that the type of documents prepared in connection with a real senate deal are normally non-confidential in nature and many of them do not involve the giving of legal advice. Real estate counsel may feel insulted to hear that much of the documentation surrounding the transactions they work on is, according to the Court, the work of a mere "scrivener," facilitating the passing of title and disbursing of funds. This includes sales contracts, HUD statements, closing statements, and payment documentation.

The decision begs the question: How much of the work of any transactional lawyer is really "legal advice" as opposed to simply facilitating the deal? Corporate lawyers may snicker at the thought of themselves as mere scriveners. But it might not be so funny when their files are subpoenaed.

The full text of the decision is available here.  

This blog entry was originally posted on Legal OnRamp.  Goulston & Storrs attorneys provide blogs, discussion forums, collaboration, and pertinent news and related key cases regarding attorney-client privilege and work product protection information for Legal OnRamp.

This information should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.

Pursuant to IRS Circular 230, please be advised that, this communication is not intended to be, was not written to be and cannot be used by any taxpayer for the purpose of (i) avoiding penalties under U.S. federal tax law or (ii) promoting, marketing or recommending to another taxpayer any transaction or matter addressed herein.

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