The attorney-client privilege is one of the oldest privileges for confidential communications. This privilege assist when there is an attorney-client relationship. The privilege is asserted in the face of a legal demand for the confidential communications, such as a discovery request or a demand that the lawyer testify under oath.
What Is Attorney-Client Privilege?
Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret. This is the name given to the common law concept of legal professional privilege in the United States. The privilege is a client’s right to refuse to disclose, and to prevent others from disclosing confidential communications between the client and the attorney.
The attorney-client privilege is a foundational component of the American legal system. Not only does its guarantee of confidentiality allow for better legal advice, the privilege promotes compliance with the law by encouraging communication. A client in doubt about whether certain conduct is within the law is more apt to seek advice of counsel knowing that advice cannot be shared outside the attorney-client relationship.
While the attorney-client privilege is firmly established as a legal doctrine that protects confidential communications between lawyers and their clients, its application is not absolute. The circumstances of the communication, its content and even subsequent actions relating to the privileged communication must be carefully considered to preserve the integrity of the privilege.
Read more about the attorney-client privilege here .
Purpose of Attorney-Client Privilege
The purpose of the attorney-client privilege is to promote open and frank communications between clients and their lawyers. To represent a client effectively, lawyers must have access to all relevant information concerning the representation. If a client knows that certain information will be kept secret, he or she may be more willing to divulge that information to the lawyer.
The privilege also ensures that lawyers can provide candid and frank legal advice to their clients. For example, a lawyer might be more circumspect in discussing whether a client’s course of conduct amounts to fraud if that conversation could be disclosed to prosecutorial authorities or a potential adversary in civil litigation.
Here is an article for more information on the purpose of the attorney-client privilege.
What’s Covered Under Attorney Client Privilege?
The attorney-client privilege in the United States is often defined by reference to the 5 Cs: (1) a Communication (2) made in Confidence (3) between a Client (4) and Counsel (5) for the purpose of seeking or providing legal Counsel or advice.
- All types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege. This may include oral communications and documentary communications like emails, letters, or even text messages.
- The communication must be confidential . That means the communication is limited to the client and the lawyer. If anyone outside the attorney-client relationship receives the communication – for example, a close friend copied on an email to the lawyer – the privilege is lost. Even if such a communication is made in confidence, it loses the privilege. That is called “waiving” the privilege.
- The communication must be made by a client . A formal retainer agreement is not necessary. It is enough for the individual to honestly believe he or she is consulting the lawyer for purposes of obtaining legal advice in advancing his or her own interests. A corporation can be a “client” too. In that case, the privilege protects communications between the company’s lawyer – whether an “in-house” lawyer employed by the company, like a general counsel, or “outside” counsel at a law firm – and the company’s employees so long as the communications fall within the scope of the employee’s duties.
- The client’s communications must be made to counsel – a lawyer . The privilege also covers a client’s communications with individuals who assist the lawyer in the representation, such as a paralegal or an investigator.
- Communications must be made for the purpose of seeking or providing legal advice . In the corporate context, that means a lawyer’s communications are not privileged when the lawyer is providing business advice.
- Communication must meet certain criteria . Communication (i.e. emails, correspondence, oral communication, etc.) will only be privileged when the subject communication meets certain criteria, and it is confidential (meaning that it is not shared with non-attorney/non-client third parties).
In order for the privilege to apply to the communication itself, the “primary purpose” of the communication must be to seek or provide legal advice. In other words, a communication is not privileged if it does not: (1) request legal advice or (2) convey information reasonably related to a request for legal assistance. Having a discussion (or email exchange) with an attorney, where others are present (or included) is not privileged.
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Attorney Client Privilege Exceptions
Some of the most common exceptions to the privilege include:
- Death of a client. The privilege may be breached upon the death of a testator-client if litigation ensues between the decedent’s heirs, legatees or other parties claiming under the deceased client.
- Fiduciary Duty . A corporation’s right to assert the attorney-client privilege is not absolute. An exception to the privilege has been carved out when the corporation’s shareholders wish to pierce the corporation’s attorney-client privilege.
- Crime or Fraud Exception . If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of a legal counsel, such communications are privileged unless the client considers covering up the crime or fraud.
- Common Interest Exception . If two parties are represented by the same attorney in a single legal matter, neither client may assert the attorney-client privilege against the other in subsequent litigation if the subsequent litigation pertained to the subject matter of the previous joint representation.
Here is an article for more information relating to exceptions to the attorney client privilege.
Examples of Attorney-Client Privilege
Following are some examples of attorney-client privilege.
- A client is seeking advice from a lawyer for a business transaction and discloses confidential information about their business operations.
- A client disclosing information to his or her attorney about a past crime that he or she committed, and the communication was done in private.
- A client disclosing to the attorney that he or she hid assets in a divorce.
- A communication between privileged persons (attorney, client), made in confidence for the purpose of obtaining or providing legal assistance for the client.
What Happens When Attorney-Client Privilege is Broken?
Specific sanctions may be imposed on an attorney who reveals confidential communications, but where there is the mere potential for disclosure, disqualification motions are common. These motions typically claim that a lawyer or firm should be disqualified due to the fact that the lawyer or a member of his firm had previously represented the party desiring disqualification.
While disqualification cases deal only with the possibility of disclosure, where actual disclosures of client confidences occur, individual sanctions may include formal reprimand, suspension or disbarment. These various sanctions are imposed by courts to preserve the integrity of attorney/client communications as illustrated by case law concerning confidences which have been revealed.
Model Rules of Professional Conduct
You should also familiarize yourself with the Model Rules of Professional Conduct. The Model Rules of Professional Conduct (MRPC) are a set of legal ethics rules created by the American Bar Association (ABA) in 1983 in place od the 1969 Code of Professional Responsibility.
The MRPC is comprised of the following sections: Client-Lawyer Relationship, Counselor, Advocate, Transactions with Persons Other than Clients, Law Firms and Associations, Public Service, Information About Legal Services, and Maintaining the Integrity of the Profession. The MRPC provides both mandates and guidance in discretionary situations on topics including conflicts of interest, attorney duties of competence, diligence, confidentiality and loyalty, conduct owed to the courts, attorney fees and solicitation, and more.
Here is an article for more information relating to the Model Rules of Professional Conduct.
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