You can question why attorneys in court are entitled to claim privileges and keep secrets, particularly when the purpose of a court proceeding is to determine the facts, so that it is possible to enforce the proper law and serve justice. There’s an idea here. To allow a client who wants legal advice to tell the lawyer the facts, a privilege is intended. A lawyer would be less able to assist the client without knowledge of the facts.
The legislators and the courts have agreed that the administration of justice serves to protect the attorney-client privilege, even if it can, at times, conflict with the search for reality. If attorney performance was weakened by the inability to collect protected client information, the adversarial mechanism would likely suffer.
The legal right against forced disclosure regulates the degree to which a lawyer will be expected to confidently reveal what a client has disclosed to the lawyer. The privilege exists to ensure that every client can trust his lawyer openly and completely without fear of disclosure or adverse impact. See Upjohn Co. v. U.S., 449 U.S. 383 (1981).
For the attorney-client privilege to apply, four elements are necessary:
– Communication may have occurred;
– The contact must be with someone who at the time was (or wished to be) a client of an attorney acting as such;
– The contact must have been made in confidence (without aliens present); and
– For the purpose of having legal assistance, the communications must have been made.
In essence, during the process of obtaining professional legal advice, the attorney-client privilege protects against the mandatory disclosure of any confidential information provided by a client to his attorney. “Required” means that there must be a request for information by subpoena or other order sanctioned by statute for the attorney-client privilege to be invoked. After first receiving an order to produce documents, a client can not claim the attorney-client privilege, at least from a technical legal perspective. A client has the right to refuse to reveal and/or to prohibit any person from revealing confidential correspondence between that client and his counsel if there is a request for information from an adversary.
For the purpose of rendering or receiving legal advice, confidential correspondence must be connected to consultation. If the attorney works in a capacity other than as a lawyer, then there can be no right.
Often, during the course of obtaining legal advice protected from forced disclosure, it is a little difficult to differentiate between general facts that the client is expected to reveal and certain confidential communications of facts by the client to the lawyer. Is anything addressed between a client and a lawyer covered until it has been shared confidentially? That can certainly not be the case, or the quest for truth will be fatally hindered.
Not all reported to an attorney will enjoy immunity. A case’s “underlying facts” are not covered. A client who is obliged to reveal information in discovery or other cases will not be relieved of that duty merely because he confidentially revealed certain facts to his counsel. Clients and lawyers must meet their duties to respond truthfully to demands for relevant details for discovery, and the safeguards granted by the right of the attorney-client will not preclude the disclosure of basic evidence required to settle the litigation.
Documents prepared by or for an attorney may be covered only if they are supposed to remain confidential. Documents prepared by a lawyer for reasons not relevant to the relationship between the attorney and the client, but then provided to the attorney, are not protected communications at all.
Think of company files or personal letters – you cannot easily hand over those documents to the lawyer and believe that only because you “communicated” them to the lawyer, the documents would be privileged. Similarly, on the ground that the information requested is strictly within the knowledge of his counsel, a party cannot refuse to respond to interrogatories.
In order to better understand whether a client is entitled, upon a request for information, to claim the attorney-client privilege, it may be beneficial to go over the six questions we addressed in the “introduction to confidentiality.”
In order to improve the consistency of argumentation, the rule of attorney-client privilege is intended to cultivate bonds of confidence between a client and a lawyer.
Note also that a contact would be only if the reason for the communication is for the client to obtain legal advice or help through an attorney-client relationship. The person requesting advice does not necessarily need to employ the solicitor, and any negotiations will enjoy confidentiality even before retention.
Originally, only verbal interactions were protected between an attorney and a client. Coverage, as well as actions intended to communicate a message, has been extended to include spoken or written words.
As such, communications can include records, given that they have been prepared in order to obtain legal advice. In the text, the “underlying facts” may be subject to discovery. The records themselves may, however, be secured. When we talk about attorney work products, another confidentiality doctrine, we will learn some more about document preparation (especially notes written by lawyers to better represent the client). For now, just note that if the object of the communication is related to consultation for legal advice, confidential communications between a lawyer and a client will enjoy confidentiality.
The right of the solicitor-client is restricted to those communications intended to be confidential by the client, or those communications that the client might reasonably believe would be understood to be confidential by her attorney under the circumstances.
“Confidential” does not mean that, in a closed space, a client must meet with an attorney alone. The involvement of assistants who are critical to preserving the attorney-client relationship, like paralegals, would not break the right. If a client discloses to third parties the content of a confidential attorney-client conversation, either by accident or deliberately, the communication will lose its protected status. The existence of eavesdroppers may also be fatal to the privilege. According to most courts, the eavesdropper can testify about a conversation that is otherwise privileged.
The defendant is the holder of the right when it comes to asserting the attorney-client privilege. If the defendant dies and litigation persists over the deceased client, the right is entitled to be asserted by his successor or personal representative. The right does not terminate upon the death of the customer.
When a customer knowingly discloses data that would have been shielded by the right of the attorney-customer, the privilege is waived. If a client fails to claim the right when she has the chance, the waiver would also result. There is also a problem as to how much of an otherwise confidential correspondence must be revealed when part of the communication is disclosed.
On behalf of a large corporate client, this is a serious thorn in the side of lawyers at large law firms working on document creation. Big corporations employ lawyers’ teams to go through millions of documents at times to verify whether or not the documents contain protected conversations between attorney-clients. There is a risk that a judge will order the entire subject matter covered by the attorney-client correspondence to be produced to an opponent if a document containing confidential information is inadvertently produced. It’s kind of like “opening up a can of worms”-and unintentional disclosure of protected details can be a nightmare for lawyers in controversial litigation. As a consequence of the amount of documents inevitably involved with a dispute, the discovery process in major corporate cases frequently takes an eternity due to the work that goes into privilege document analysis.
Perhaps the most notable exception to the attorney-customer privilege is the “crime or fraud” exception. When a client needs the support of a lawyer to commit a crime or fraud, no privilege exists for any illicit communications. In order to protect communications that encourage illegal activity by clients and lawyers, there is simply no excuse, but the law offers a required exception.