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Limits Of Attorney-client Privilege

Since long time ago, the attorney-client privilege has maintained the secrecy of correspondence between attorneys and clients. Originally, it was intended to protect a lawyer from being pressured to testify against a client. The new aim is to facilitate full disclosure so that the consumer gets the latest and most knowledgeable legal counsel, without fear of revealing the information to others. The right extends to either the client’s or the lawyer’s agents (e.g., secretaries). The privilege applies to all organizations and persons. The right of the attorney-client is also protected by contacts that “agents” (trustees, administrators, faculty, employees, and students) have with university lawyers, in trust, for the purpose of receiving legal advice on university matters.

 

What is protected

The protection shall cover:

  • oral and written correspondence, including electronic communications;

  • for the purpose of obtaining or offering legal advice.

 

What’s Unprotected

The acknowledgement that an attorney-client meeting has taken place and the general subject matter of the consultation is not privileged, but rather the substance of the correspondence.

Not all interactions are privileged by the very fact that a counsel is called upon to be present or engage in a discussion/meeting. Just certain parts of correspondence that request or address legal counsel would be privileged. If an attorney is asked to play a position other than as a lawyer (e.g. an auditor, company analyst or other general, non-legal consultant), the right does not extend.

Documents submitted to or checked by an attorney are not immediately privileged; in order to seek legal counsel, they must be sent to the attorney.

Communications made in ‘public’ contexts, or in the company of third parties with a reasonable reason to know otherwise sensitive communications, are not considered confidential and are not privileged. The secret to maintaining the exclusive essence of correspondence is secrecy.

 

When to Seek Protection Under the Privilege

– Possible lawsuits in anticipation;

– Before (and, if applicable, during) examining actions that can pose legal concerns;

– Enforcement and investigation proceedings;

– When required, legal counsel may be useful and secrecy is important on all other legal matters.

 

Oral Communications

It is better to have an attorney for consideration, either in person or by telephone, whether the object of the meeting is to receive or discuss legal advice, or to compile details required to obtain legal advice.

In areas where you might fairly hope to be overheard, you should stop sharing attorney-client correspondence.

 

Documented Correspondence

Identify and assert the right in relation to document by identifying the document under the Attorney-Client Privileged Communication.

Give the paper to a lawyer and restrict circulation to anyone with a genuine need to know. Identify on the paper all receivers of the document, make no blind copies.

Treat and safely preserve the text and any material stored on data disks, hard drives and storage devices as confidential.

Consult the attorney promptly in the event of an inadvertent leak, inform the receiver that the disclosure was inadvertent, and order the return of written documents.

 

Example

Via discussions at another organization with a colleague, Mr. Smith becomes conscious that he may have unwittingly breached some tax regulations as director of the company. Mr. Smith asks the colleague for more regulatory detail, but he is careful not to disclose that he will not be in compliance with the regulations.

Mr. Smith sends an email to an attorney promptly, describing the details that give rise to the breach, and calling for legal advice. Mr. Smith CC is also the director of his financial department, Mr. Peterson.

In this case, the disclosure of Mr. Smith to the attorney is covered by the right of the attorney-customer. Mr. Peterson’s disclosure would not violate the right, as Mr. Peterson wants to be aware of possible lawsuits concerning the company he is responsible for financial part of the business. The interaction between Mr. Smith and his associate, though, is not entitled to attorney-client privilege. In a future court action, the colleague could be required to testify against Mr. Smith, which is why Mr. Smith was wise to use circumspection when first debating the matter with the colleague.