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“Attorney-Client Privilege” is the client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney. It is a right, asserted in investigations and court proceedings, to shield these communications from discovery. It ensures that your private conversations with your attorney can’t be used against you or your business.
While attorneys have a separate duty of confidentiality, to keep information about their client’s representation confidential and prevent disclosure of information shared to the attorney in confidence; Attorney-Client Privilege belongs to the client, may be asserted only by a client, and most importantly, must be protected by the client.
For communications to be entitled to the protection of the Attorney-Client Privilege, the communication must be (1) made by a person who is, or who is seeking to be a client, (2) made in confidence to their attorney, and (3) made to secure legal advice. This means that communications to a friend who is also an attorney, or to an attorney that is serving in a non-legal capacity, will not be protected.
This also means that communications that are shared outside the bonds of the attorney-client relationship with some exceptions will not be protected, such as copying someone outside of your organization on an email with your attorney or having someone outside of your organization join in a conference call with your attorney.
While it may be fairly simple to establish Attorney-Client Privilege, it is just as easy to break it. If you share your attorney’s advice with someone else, you have waived your claim of privilege. For example, you ask your attorney to review a contract, and they provide you with an email analysis of the various negotiating points. If you decide it will be easier to simply pass this email on to your counterparty so that you can work through them together, you have waived any claim of Attorney-Client Privilege to that communication. Later down the road, if you find yourself in a dispute with that counterparty, that email may be discoverable. Even inadvertent disclosures, like leaving a printed copy in a public space, accidentally including attorney communications in a data room, having a phone discussion on speaker with non-clients in the room, or sending to the wrong email address may waive privilege.
1. Keep the loop small. To maximize protection, try to avoid having anyone in the video conference, on the conference call, or copied on an email chain that isn’t central to the issue discussed with counsel.
2. Use the Phone. Some issues are better to be discussed in-person or over the phone with your counsel to avoid the possibility of the privilege being shared and thus waived.
3. Be Proactive. If a dispute is anticipated, tell your attorney upfront so that additional steps can be undertaken to protect your discussions under other privilege doctrines, such as the attorney Work Product Doctrine.
RR&A is happy to discuss these and other best practices with you and your organization to ensure that when you need it, the Attorney-Client Privilege can be asserted and used to your advantage.
Disclaimer: The information and material on this website is general information about our practice and firm. This information does not offer specific legal advice and the use of this information does not create an attorney-client relationship with RR&A or any of its attorneys. The information on this website should not be used for legal advice, and persons should not act upon the information on this website without engaging professional legal counsel.
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