By: Gail S. Kelley, P.E., J.D
ConstructionRisk, LLC

When a lawyer working as a risk manager brought a sex discrimination and Equal Pay Act claim against her former employer, the former employer filed a motion for a protective order, claiming that the woman was an attorney, and thus the internal communication she sought to obtain in discovery was protected by attorney-client privilege. The court denied the motion, holding that an individual is not providing legal advice simply because they have a law degree and their work involves reviewing insurance policies and managing insurance claims.

Carolyn Casey, the plaintiff in Casey v. Unitek Global Services, Inc., (U.S. District Court, E.D. Pennsylvania, 2015), had a law degree from Widener University but before becoming employed by Unitek Global Services (“Unitek”), she had worked exclusively in insurance claims management. Unitek hired Ms. Casey as its Director of Risk Management in 2011 and subsequently promoted her to Vice President of Safety and Risk. During the course of her employment at Unitek, Ms. Casey complained both that she was being paid less than her male co-workers and that she was being sexually harassed. In January 2013, Ms. Casey emailed a written complaint regarding repeated sexual harassment by one particular individual, and states that, within minutes, she was terminated.

Ms. Casey filed a complaint under Title VII of the Civil Rights Act and the Equal Pay Act, and sought to have Unitek produce certain emails during discovery. Unitek moved for a protective order, asserting that because Ms. Casey was an attorney, all of Ms. Casey’s emails while employed at Unitek were protected by attorney-client privilege.

The court acknowledged that:

A motion for a protective order is a proper method for challenging inappropriate discovery requests… upon a motion by a party from whom discovery is sought and for good cause shown, the court may enter a protective order preventing discovery on certain matters. …A party may demonstrate good cause for the issuance of a protective order by establishing that the sought after discovery is protected by attorney-client privilege.

However the court found that attorney-client privilege did not support the issuance of a protective order in this case, because Ms. Casey, while she was an attorney, was not Unitek’s attorney. Attorney-client privilege only applies to communication between a client and its attorney or the attorney’s agent, when the communication is made to obtain or provide legal assistance for the client.

The court noted that Unitek did not hire Ms. Casey to be its attorney. Rather, Unitek hired Ms. Casey to work in risk management. The risk management and safety departments were separate from the legal department and did not report to Unitek’s General Counsel. Ms. Casey’s work involved reviewing Unitek’s insurance policies, analyzing risk, reducing loss, and managing litigation arising from insurable claims.   This work did not require Ms. Casey to have any legal knowledge.

The court specifically noted that Ms. Casey’s management of litigation arising from insured claims did not establish an attorney-client relationship. The claims were not assigned to her office because she was an attorney but because she negotiated and oversaw the insurance policies. As a result, she was in the best position to communicate with insurers regarding the litigation and to discuss settlement. After consulting with the insurers and Unitek executives, Ms. Casey communicated the company’s position to outside counsel. Thus Ms. Casey was not acting as Unitek’s attorney, but as a client to outside counsel.

Comment: This case highlights that certain positions, especially those involving insurance policies and insurance claims, may appear quasi-legal. However, unless an individual is actually providing legal advice, their communications are not protected by attorney-client privilege.

About the Author:  As a professional engineer, Gail Kelley has performed structural design and analysis of post-tensioned structures, has performed constructability reviews, due diligence inspections, and condition assessments, and has provided litigation support for construction defect and delay claims in both state and federal court.  She received her B.S. in Civil Engineering from Cornell University, and Master of Science in Structure and Materials from Massachusetts Institute of Technology (MIT), and she received her Juris Doctorate from American University, Washington College of Law.  She provides risk management services for ConstructionRisk, LLC.   This article is published in Report, Vol. 17, No. 4 (June/July 2015).

Copyright 2015, ConstructionRisk, LLC