Attorney-client privilege encourages clients to share candid information with their attorneys, which allows lawyers to represent them effectively. It is essential to our justice system, and it must be respected by all parties involved.
In general, communications between a lawyer and client are privileged if they can reasonably expect that the communication will remain private. However, some exceptions apply.
What Is It?
Attorney-client privilege prevents forced disclosure of written and oral communications (including email) between a lawyer and client that are made for the purpose of requesting or receiving legal advice. It does not protect the fact that a client consults with an attorney, nor does it protect communications pertaining to underlying facts or documents that may have led to the consultation.
For example, if a vice president consults with the Office of General Counsel regarding a lawsuit brought against the University by a former employee, it would be inappropriate to share that discussion with Dean Chauncy (who is not involved in the case). The attorney-client privilege applies only to communications between the client and the attorney.
The primary reason for attorney-client privilege is to encourage clients to make full and frank disclosures of relevant information so that their attorneys can provide them with candid advice and effective representation. It also ensures that confidential communications between lawyers and clients will not be shared with others, including prosecutorial authorities or potential adversaries in civil litigation.
There are a number of exceptions to attorney-client privilege, however. For example, communications that are made in the presence of third parties – even unwitting ones – will not be protected by the privilege. Privilege can also be waived if the client publicly discloses information that was privileged or allows his or her attorney to disclose such information to someone else without invoking the protection of the privilege.
Who Can Claim It?
The attorney-client privilege protects communications about legal matters between a client and his or her lawyer. A client must be willing to disclose all information relevant to the representation. However, not every communication is automatically privileged, and even merely using an attorney in an email does not automatically invoke privilege. Rather, the attorney-client privilege only attaches to confidential communications made for the purpose of seeking or obtaining legal advice or services.
The courts have developed a number of exceptions to attorney-client privilege. For instance, it is not privileged to disclose information to third parties outside the scope of the representation (such as an employer). In addition, a client may waive attorney-client privilege by sharing confidential communications with nonlegal people or by failing to keep communications confidential.
For a corporation to qualify as a client, it must have an in-house attorney or retain an outside counsel who will be acting on its behalf. In addition, the corporation must be represented by individuals who are authorized to speak for it, such as officers and directors.
Several amicus briefs in the Kellogg case argued that attorney-client privilege must be protected so that clients can be more open and frank with their lawyers. This enables attorneys to provide effective representation and serves broader public interests in the observance of law and administration of justice.
What Can Be Done With It?
In addition to being used to ensure confidentiality, attorney-client privilege encourages frank discussion between clients and their lawyers. For instance, a client who is in doubt about whether his or her course of conduct would be considered fraud may be more likely to seek legal advice if he or she knows the lawyer’s advice cannot be disclosed to anyone else. This helps protect both the client’s economic interests and broader public policy interests, such as adherence to the law.
However, because the Supreme Court has not clearly articulated a definition of confidential communications, courts must apply a series of factors to determine whether a communication is privileged. For example, a court must decide whether the communication was made for a business or legal purpose and, if it is a legal matter, whether the attorney-client relationship exists.
Additionally, a court must evaluate whether the communication could be revealed for nonlegal reasons or whether it was disclosed to a third party without the client’s consent. Finally, a court must assess whether the client intends to commit or cover up fraud or a crime.
The law firm that filed the amicus brief in Mead Data argues that a primary-purpose test undermines attorney-client privilege because it requires courts to make these determinations retrospectively, after the fact, at a time when it is often too late. The law firm argues that it is inherently unpredictable for courts to determine a client’s primary purpose after the fact and that this creates an incentive for clients not to be candid with their attorneys.
What Can Be Done Without It?
The attorney-client privilege prevents the forced disclosure of any written or oral confidential communication between a lawyer and client, as well as information provided to a lawyer by third parties. However, the attorney-client privilege can be waived by a client. In order to be privileged, the communication must be made in confidence and for the purpose of obtaining legal advice. It must also be communicated to only the attorney and client. For example, if Dean Chauncy shares a conversation with his attorney, Eaton, with another person outside of the attorney-client relationship (such as by having another person copied on an email), the communication becomes non-privileged and can be compelled to be revealed in court.
The privilege is meant to encourage candid and frank communication between clients and their attorneys. If a client fears that their conversations might be divulged to prosecutorial authorities or their adversaries in litigation, they may be less likely to disclose important information that could help them comply with the law or recover damages for fraud.
The privilege applies not just to individuals, but corporations as well. If a corporate officer, such as Sally Smith, calls an attorney, such as David Jones, and discusses a tax liability or potential risk that the corporation might face, it is probably privileged because it is relevant to Sally Smith’s job as president of the company. The same might apply to discussions between in-house and outside counsel for a corporation.
