The relationship between a client and an attorney is unique. For attorneys to get the support they need, attorneys and clients must be able to speak openly, and this is made possible by the attorney-client privilege and the work-product doctrine. During legal representation, the attorney-client confidentiality covers sensitive knowledge learned from an attorney. When attorneys and clients believe action is probable, the work-product doctrine covers the opinions and documents planned, and correspondence made.
The aim of the right of the attorney-client privilege is to facilitate free discussion between a lawyer and a client. The attorney can not be properly aware of the circumstances of the case if attorney and client do not speak to each other openly, and the defendant will not get the full advantage of the legal system. The right also makes clients more secure asking for early legal aid. In addition to preserving the information shared between a prosecutor and a client, the right also covers individuals allowed to work on their behalf (so-called agents). It is possibly also a right, for example, to communicate classified material to a lawyer’s legal assistant. Often, it does not necessarily involve a formal attorney-client partnership. The privilege applies to prospective applicants who contact a lawyer, even though the lawyer is not actually hired, to eventually employ the lawyer for legal work.
The contact must be rendered in order to aid a counsel in offering legal assistance to the client in order for the right to extend. Moreover, a correspondence must be private, indicating that it is not meant to be revealed to anyone outside of the customer and the counsel. The defendant risks waiving the right if someone other than the counsel and the client is present while the contact is made, including to family members, colleagues, etc.
The right extends in court litigation to more than just correspondence. More generally, regardless of the attorney-client partnership, it refers to every other fact the attorney knows. An attorney must also reveal sensitive consumer information under certain specified cases to deter a felony or criminal act where the result is probable death or serious bodily harm to another person. The counsel may (but is not necessary to) report sensitive information to deter the client from committing a crime or dishonest act if death or serious bodily harm is not probable. The prosecutor can also share sensitive details if necessary to correct the effects of the previous illegal or dishonest act of a client if the services of the lawyer were used to perform the act. The right is held by the customer. If an exception exists, in a legal case, the client may refuse to reveal the details and may prohibit the counsel from doing so. Exceptions include, among others, correspondence involving the death of a client or conflicts between the counsel and the client. Clients should be very willing to share confidential details and, before doing so, should nearly always contact an attorney.
The Work-Product Doctrine
The work-product doctrine safeguards the proposals and strategic decisions taken in a lawsuit by shielding knowledge that exposes an advocate, a customer, or their agent’s thinking process. Notes, memorandums, letters, addresses, not just communications, should be used. Job substance security supports the legal process by safeguarding the work of a defendant in preparation for prosecution and forcing an opponent to bring his own case. The work item contains planned information, formed mental experiences, or correspondence made “in anticipation of litigation” or for trial. A challenging term would be “in anticipation of litigation,” since it can be difficult to find out whether parties believe litigation is a possibility. Second, they question if, under the circumstances, a sensible individual would have expected ligation. Third, they question if the customer understood in good conscience that there was a significant risk that lawsuits could exist and made the documents, emails, etc. to brace for the possibility, seeking to keep details private.
The work-product doctrine has a seldom used exception. Materials that do not actually represent the opinions of an attorney (called “non-core” work product) when preparing for litigation can be handed over, but only if:
the opposition party may establish that it has a significant need for the material to prepare its case, and
the plaintiff is unable to access the information by any means without undue difficulty.
Simply stated, the knowledge must be very relevant and difficult to access otherwise, if not impossible. The “core” work object, which truly represents the opinions of an attorney, is completely covered. The two rights are different from both the Attorney-Client Right and Work Product Doctrine are different. Second, there are distinct roles they do. The work-product doctrine is not concerned with protecting the sensitive records of clients, unlike the attorney-client privilege. Its aim is to protect the counsel, plaintiff, and their members’ intelecutal structures, culminating in a protected environment to examine and plan a lawsuit. The doctrine of work-products is even wider. It covers more than just correspondence between solicitor and client, leading to notes and other litigation-ready documents. Unlike the right of the attorney-client, a work result may be revealed to an ally or entity of mutual interest without renouncing the defense (though consult with a lawyer before doing so). Finally, even though the lawyer-client confidentiality is waived (for example, by exposing the correspondence to a third person), the concept of the work-product could also be used to secure the results. And although waivers of the work-product right are necessary, on a document-by-document basis they are decided. Waivers of the right of the attorney-client can be larger, expanding to the whole subject matter covered in the correspondence disclosed.
Common Pitfalls
For example, typical mishaps arise where a client is unaware that the right covers only legal advice. Thus, asking an attorney if he or she believes the purchase of a piece of property is a fair deal is probably not covered because business advice will be given by the attorney, not legal advice. Other difficulties occur when consumers do not worry about routing e-mails or copying recipients carefully. Suppose an attorney represents a particular employee in a corporation and requests for any details from the employee via e-mail. If the staff transmits the e-mail of the attorney to someone in the organization (not represent by the attorney), the original e-mail of the attorney is no longer private and the right is waived.
Often relevant is who is copied on an e-mail. Writing a comprehensive accurate e-mail to twenty non-lawyers, for example, while copying only one lawyer, could make it impossible to eventually assert that the e-mail was sent for legal advice, as opposed to any other purpose. If a customer is actually needing legal advice, he or she can make it clear in the correspondence and send it only to the lawyer and others needed to secure the advice demanded. When people do not clearly grasp who the counsel they are referring to represents, the most difficult problems emerge. That is why “Who are you representing?” are two of the most important questions a client can pose and “Do you represent me?”
Company dealings are often a source of misunderstanding, particularly the formation of new companies, since consumers do not have a good idea of who a lawyer is representing. Assume the two friends plan to start a corporation and contact an attorney. The attorney meets both friends and starts drawing up plans to establish the new company. Who is covered by the prosecutor and whose conversations are confidential? The attorney would most certainly represent the new organization and not personally represent either friend. If a disagreement occurs between the two friends, the solicitor will be forced to report all discussions with the individuals and may encourage them all to obtain individual advice under certain situations. There may also be problematic hierarchical representations.
Different situations may cause an attorney to defend the organization, the organization and one or more members, or only certain persons, whether an organization is sued along with its directors, officers, or other personnel. If a corporation for which an entity operates is sued and that person is involved in some manner, before sharing sensitive details, the person can clarify who the attorney he or she is referring to is representing.
Family law representations, such as divorce, questions of child custody, etc., can also establish issues of privilege. Suppose an attorney pursuing an undisputed divorce is confronted by a husband and wife. In lawsuits, like divorce, lawyers do not serve both sides, and attorneys can advise parties that they represent either one partner or the other. As a result, even though the divorce is agreeable and the husband initially meant the discussion to be private, the conversation of a husband with the advice of his wife would not be privileged.
Finally, parents can sometimes be puzzled by images of infants. Suppose parents pay their child who has been involved in a car crash court fees. Parents also believe that they will listen in on negotiations with a child and his or her counsel when they are covering legal fees. But the attorney represents the child, not the parents, and the involvement of the parents in such discussions which prohibit the right of the attorney-client from applying.
Conclusion
The right of lawyers and clients and the doctrine of work-products are essential instruments required for lawyers to successfully serve their clients. But all lawyers and clients should be aware of the application of these provisions and whether their messages are sensitive and secure. Over all, before submitting a message meant to be safe, clients should think clearly and have a good idea of who the lawyer they are talking with represents before sharing classified material.