Legal Definitions - scrivener's exception

The scrivener's exception is a specific situation where the usual protection of the attorney-client privilege does not apply. Normally, the attorney-client privilege keeps confidential communications between a client and their lawyer private, encouraging clients to speak openly without fear of disclosure.

However, this exception comes into play when a client hires an attorney not for legal advice or strategic counsel, but solely to perform a simple, administrative, or clerical task. In such cases, the attorney is acting more like a "scrivener" (a professional copyist or scribe) rather than a legal advisor. Because no legal advice is being sought or given, the communications related to that ministerial task are not protected by the attorney-client privilege.

Here are some examples illustrating when the scrivener's exception might apply:

• Example 1: Business Name Registration

  A small business owner has already decided on their company's legal structure and chosen a specific business name. They understand the implications and simply need to register this name with the state government. They hire an attorney only to accurately complete and submit the standard government forms for business name registration, providing all the necessary information themselves. The attorney offers no advice on the business structure, potential trademark issues, or liability implications.

  Explanation: In this scenario, the attorney is performing a purely administrative task of filling out and filing a form based on the client's explicit instructions. They are not providing legal judgment or advice, so communications related to this task would likely not be protected by attorney-client privilege.

• Example 2: Simple Property Transfer Document

  Two family members agree to transfer a small, unencumbered piece of land between them using a straightforward quitclaim deed. They have already agreed on all the terms, including the property description and the parties involved. They engage an attorney solely to draft the standard quitclaim deed document using the information they provide, ensure it is correctly formatted, and assist with its proper recording. The attorney does not advise them on tax consequences, potential title defects, or alternative methods of transfer.

  Explanation: Here, the attorney is acting as a drafter and facilitator for a pre-determined, simple transaction. Their role is ministerial – accurately putting the client's agreed-upon terms into a legal document and ensuring procedural compliance – rather than offering legal counsel or strategic advice. Therefore, the privilege would not apply to these communications.

• Example 3: Amending Corporate Bylaws with Specific Wording

  A corporate board has voted to amend a specific section of its bylaws to reflect a change in the number of directors, and they have provided the exact new wording they wish to incorporate. They instruct their corporate attorney only to insert this precise wording into the existing bylaws document, ensure it complies with internal formatting standards, and assist with the necessary internal filing procedures. The attorney is explicitly told not to review the legal implications of the amendment or suggest alternative language.

  Explanation: The attorney's role here is limited to a clerical and administrative function – incorporating pre-approved text and managing the document. Since no legal analysis, judgment, or advice is being sought or given regarding the substance of the amendment, the communications surrounding this task would fall under the scrivener's exception.