The scope and goal of privilege
Attorney-client privilege, for the purpose of requesting or receiving legal advice, attaches to contact between privileged individuals, made in trust.
In general, when the prospective client wants to establish an attorney-client relationship for the purpose of receiving legal advice, the contact must occur between a client and lawyer who have formed an attorney-client relationship or between a potential client and a lawyer.
A communication must be primarily intended to obtain or provide legal advice, although an implied request for legal advice is normally sufficient to comply with the standard. For business advice, attorney-client privilege does not apply. It is a fact-intensive, case-by-case review to differentiate between legal advice and business advice. Legal advice is advisory on the legal or tax ramifications of a business decision; moreover, a conversation in which an attorney assesses a business decision is not privileged. Simply copying in-house counsel on an email about a business matter, for example, would not make the correspondence privileged because it is clear that the communication was sent to counsel so that he or she may then offer legal advice.
A lawyer-to-client contact is secured in most jurisdictions, but it must refer to a previous confidential communication made to the lawyer by the client. Only where the advice represents a private client-to-lawyer relationship is legal advice protected by attorney-client privilege. The protection also covers memorandums from internal lawyers that commemorate confidential communications. Lawyer-to-lawyer conversations are often called privileged conversations between lawyers in the same firm and representing the same client.
Because attorney-client privilege is meant to preserve the presumption of confidentiality, if a non-agent third party is present, it will not be attached to a contact.
Exclusions
Attorney-client disclosures made during an internal inquiry can be privileged, but only if the disclosure fits the normal requirement of privilege – confidential disclosure for the purpose of obtaining or offering legal advice. Privilege is not added merely because the investigation is undertaken by an attorney; privilege attaches only when the attorney performs the investigation as a legal counsel in order to offer legal advice.
In order to ensure the confidentiality is attached to the attorney-client correspondence made during the investigation, corporations also use outside attorneys to perform internal investigations. But when in-house counsel directs an internal inquiry for the purpose of offering legal advice, privilege may also be added. In-house counsel can direct other, non-judicial, departments to perform the investigation, and as long as the fruits of the investigation are for legal advice, privilege will be attached. If in-house counsel orders another department to conduct the investigation, then that department becomes the representative of the lawyer and may fulfill a privileged contact standard.
Who keeps the safeguard?
Do the rights for attorney-client correspondence in your jurisdiction belong to the client or is confidentiality a responsibility incumbent on the attorney?
Privilege, belongs to the client not the attorney. The responsibility of confidentiality of a lawyer is a different ethical requirement rather than an evidentiary norm. A client may demand that an attorney waive privilege on his or her behalf.
Fundamental facts of contact
To what degree are, as opposed to the attorney-client contact itself, the information exchanged between an attorney and a client protected?
They are not privileged evidence. However, for the purpose of offering or obtaining legal advice, a client cannot be required to reveal which relevant details were relayed to his or her lawyer or the facts the lawyer requested him or her to relay.
The Agents
Under what cases do interactions with attorney’s agents or client’s agents fall within the limits of attorney-client contact protections?
Communications with agents of a client fall beyond the sphere of privilege, as a general rule. In addition, relations with the agents of a lawyer fall within the spectrum of privilege.
The agent of a client is only under the scope of privilege, so that when the agent is allowed to communicate with the client and the lawyer, he will connect to the confidential correspondence. For determining whether the client-agent was necessary, some jurisdictions use a ‘reasonableness’ criterion. Translators, co-counsellors, independent auditors and consultants are examples of client-agents considered to be beyond the reach of privilege. However, on a case-by-case basis, the problem is assessed, because an accountant can be within the scope of privilege for one client, but not for another. Courts also concluded that relatives, former private lawyers and members of the union are normally beyond the privilege reach. Depending on the circumstances, family members and spouses may fall into privilege.
The agents of lawyers may be within the reach of privilege, so that a confidential contact with the agent is attached. Courts have consistently held that members of a lawyer’s regular staff, such as secretaries and paralegals, are beyond the scope of privilege.
Corporations which claim protection
Will the protections for attorney-client correspondence be used by a corporation? On behalf of the company, who manages the safeguards?
Yes, the rights for attorney-client correspondence can be utilized by a company. The incorporeal institution, not its staff or directors, is served by both in-house counsel and outside counsel. Separate organizations may maintain their own counsel throughout the corporate structure. The lawyer, such as a board, an accounting committee or a pension plan, represents the corporate agency that employed him or her.
Generally, only high-level managers are allowed to waive the right of the organization. That said, some courts allow privilege to be waived by any employee who has access to privileged communication. Furthermore, the lawyer of the company may waive privilege when allowed.
Relations between staff and outside attorneys
Does the attorney-client communications protections apply to communications between staff and outside counsel?
Yeah, as long as the contact is for the purpose of offering legal advice and the employee is addressing problems relevant to his or her work, communication between an employee and outside counsel may be privileged.
The ‘functionality test’ articulated in Upjohn v United States is used by federal courts and several states to determine whether employee-lawyer contact is privileged. Upjohn needs the court to determine the role that the employee played in the actions at issue and the evidence that the employee had.
Used by a number of states, the minority rule requires only the ‘control party’ of the organization to participate in privileged correspondence with company counsel. There are high-ranking workers in the management department who are responsible for corporate decision-making.