One of the most notable protections provided to litigants in a case is attorney-client privilege. This right covers any interactions that exist for the purposes of obtaining or requesting legal counsel between an attorney and a client. This suggests that consumers and their attorneys will speak without constraint, or think about how the other party will view their remarks to see them.
Attorney-client confidentiality extends solely to correspondence between a client and his or her attorney exclusively. If the client takes a random friend to a meeting or discusses a consultation with an attorney with a stranger, so unless the conversation has been revealed to a third party, the right is eliminated. Conversations between clients and lawyers must, however, be kept private and tightly guarded.
It is reasonably easy to decide where the attorney-client protection extends to correspondence when lawyers communicate with particular clients and to ensure that such communications are secured. However, as contact begins to include organizations, it becomes even more difficult to extend the privilege.
Who’s the client while businesses are involved?
Attorney-client privilege is hard for corporations since the corporation is typically not represented by one person. An attorney may need to talk to a CEO to find out details about how a firm was started or big company decisions, talk about budgets with a CFO, and talk about company activities with the COO. It can be difficult to decide if and what rights should extend for too many different possible contacts and personnel within a company.
Fortunately, the United States Supreme Court released an important legal opinion on this particular topic in 1981. Known as the Upjohn case, this view lay down certain general principles for deciding when messages are safe for attorney-client contact purposes between a company employee and an attorney.
Under Upjohn, the correspondence of an individual with the counsel of a company are deemed privileged if they follow certain criteria:
– The contacts is made to give or obtain legal advice for the purpose of
– The content of correspondence pertaining to the job duties of the employee
– The worker acknowledges the material is given for the purposes of legal advice.
– The messages were made confidentially and kept private.
According to the Upjohn court, one of the major discrepancies is whether an attorney is working in a legal capacity or a professional role when the conversations occur. For instance, in addition to their legal services, often general counsel or external counsel may give business advice, and this advice may not be privileged. However, as they give legal counsel, this should come under the limits of right.
To secure your correspondence – do this
Many firms can feel uncertain or frustrated about how to ensure that messages are secured between their lawyers and staff in view of these diverse tests and contradictory instructions.
The first and most important thing to understand is that there is limited attorney-client privilege between corporate lawyers and employees and must apply to legal counsel and the direct responsibilities of the individual in the business. These restrictions should be known to any worker who interacts with an attorney.
Second, attorney-client privilege is narrowly construed, but companies will want to take protections to better ensure that any of the potentially relevant tests are fulfilled through their correspondence. This involves restricting interactions to the extent of the work-related responsibilities of an individual and ensuring that they are related to legal matters. These actions will aim to mitigate any possible damage to privilege or excessive disclosure.
Third, the problem gets much more difficult if the organization has a presence in or significant interaction with multiple states, and may thus be prosecuted in multiple states. In order to conform with the relevant requirements for all of the applicable states, the company must be doubly certain to use caution.