What is the Attorney-Client Privilege?

The attorney-client relationship has long been considered sacred by legal professionals and the public and information shared under the umbrella of the attorney-client privilege is seen in a similar light. The privilege prevents the forced disclosure of any written and oral confidential communications (including email) between attorneys and clients, which were made for the purpose of requesting or receiving legal advice. Despite a few exceptions, the privilege is very much alive and well -- but it operates a little differently than many people think. This article provides an overview of the attorney-client privilege, including what it protects and when it can be applied.

What Does the Attorney-Client Privilege Protect?

The attorney-client privilege upholds the principle of confidentiality for attorney-client communications. It promotes frank and truthful communications between attorneys and their clients by removing concerns over disclosure of such communications to opposing counsel, the court, or the public at large.

The privilege is held by the clients and in most cases can only be waived by clients, not their attorneys. The privilege is most commonly asserted when responding to discovery requests or when seeking to avoid testifying about certain matters under oath. However, it's important to note that the privilege only protects confidential communications between clients and attorneys. This means that if the communications are shared with a third party who is not part of the attorney-client relationship, it can act as a waiver and the protections can be lost.

When the Attorney-Client Privilege Doesn't Apply

Exceptions

Despite the broad scope of the attorney-client privilege, it isn't an absolute safeguard. The American Bar Association's Model Rules of Professional Conduct notes that attorneys can disclose privileged information as necessary in representing their clients. For example, attorneys can share documents with their support staff or include certain information obtained from their clients in court-filed documents in order to do their job.

Attorneys can also disclose certain information protected by the attorney-client privilege when facing a dispute with a former client, such as a malpractice action. In that instance, it may be necessary for a lawyer to disclose information such as billing records or prior client authorizations.

Lawyers can also reveal confidential information relating to client representation if they believe it's reasonably necessary to:

  • Prevent reasonably certain death or substantial bodily harm;
  • Prevent a client from committing a crime or fraud that is likely to injure another's financial or property interests; or
  • Prevent or minimize substantial injury to another's financial or property interests that is likely to result from a client's crimes or fraud, but only when the attorney's services were used in connection with such conduct (the "Crime Fraud Exception").

Waiver/Death

The attorney-client privilege may be lost by waiver which can be intentional or unintentional and, once it occurs, it's usually permanent. The privilege can be waived by failing to promptly object to a discovery request seeking privileged communications or where a client has consented to a waiver. Waiver can also occur where privileged communications are disclosed to third parties (often in this situation a third party is present at the time the privileged communication occurs).

A client's death, however, does not automatically terminate or waive the privilege. For example, the Supreme Court cited the privilege when it rejected independent counsel Kenneth Starr's efforts to obtain deceased attorney Vincent Foster's notes during the investigation of Hillary Clinton and her role in firing White House employees.

The Crime-Fraud Exception and Law Enforcement

When a client commits crimes with the attorney's help, the attorney-client privilege does not shield their communications relating to the criminal conduct. However, in these cases, privileged and unprivileged communications can easily get intermingled. Prosecutors investigating potential crimes would want to examine all records (privileged or not) to aid in their evidence-gathering, while attorneys (and their clients) would want to invoke the privilege as much as possible to protect their private communications from scrutiny.

To address this challenge, the Department of Justice (DOJ) developed a procedure for executing search warrants on subject attorneys. In situations like the raid on President Trump's attorney Michael Cohen, prosecutors must consult with the Criminal Division before a search warrant can be executed. They must then give procedural instructions to agents executing the warrant to ensure that the prosecutors and their investigations are not "tainted" by exposure to privileged material that they are not permitted to see. The DOJ then assembles a "taint team" of attorneys not involved in the investigation to review all seized documents and identify any that are subject to the attorney-client privilege. They will then look for any evidence of a crime or fraud within the privileged documents and pass along such documents to the prosecutors on the case.

Establishing and Challenging the Attorney-Client Privilege

The Supreme Court established a four-factor test in Upjohn Co. v. United States to determine whether the attorney client privilege applies and how it can be challenged. According to the test, in order to establish the privilege:

  • The person or entity asserting the privilege must be a "client";
  • Communication must be to an attorney acting as an attorney;
  • Communication must be by a client to the attorney in confidence to secure legal services or an opinion (not for the purpose of committing a crime or fraud); and
  • The client must invoke their privilege (without having waived it).

Many people have challenged the scope and duration of attorney-client privilege, but they have not succeeded in narrowing the scope beyond its very few exceptions.

Questions About the Attorney-Client Privilege? Speak Confidentially With a Lawyer

Although it's often assumed that the attorney-client privilege always applies when you're talking with an attorney, in fact the privilege must be maintained with diligence and consistency to preserve the protections for which it's so well-known. If you have questions about how to protect the attorney-client privilege with an attorney or whether the privilege has been waived in your case, contact a knowledgeable attorney about your situation.

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