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Understanding Attorney-client Privilege

The right of the attorney-client privilege is an integral part of the legal system that protects correspondence between lawyers and their clients. Correspondence between a lawyer and a client are considered confidential and can not be used as evidence in a trial or even seen by the opposing party during the discovery process (i.e. the initial discovery period) of the conflict. The privilege allows the client to participate in open and frank conversations with his or her counsel without fear that the details would be revealed to the opposing party or used as evidence against the client, in particular in the sense of a lawsuit.

Confidential correspondence between the client and attorney for the purpose of receiving legal advice are protected by the right of the attorney-client privilege. Communications are privileged, whether in written, oral or electronic form, but must be held private in order for the privilege to be granted. If the content of the correspondence is revealed to individuals / third persons who are not personally interested in the matter, the right may be lost. Communications with lawyers, including family members and colleagues, should also not be shared with others outside.

While the protection of the attorney-client privilege covers a wide variety of sensitive information exchanged between the client and the attorney, the privilege does not cover any piece of information shared between the client and the attorney. The object of the communication must be to obtain or receive legal advice. Consequently, the mere presence of a lawyer during a meeting to address operational/business problems (without the intention of receiving legal advice) would not shield contact from future discovery.

Similarly, copying a lawyer to a string of email exchanges where a lawyer does not give (or is not required to provide) legal advice would not protect communications from disclosure. Understanding this aspect is crucial to maximizing the efficacy of the attorney-client privilege.

As in other forms of rights, the right of the attorney-client does not immediately attach to conversations, records, and other types of correspondence. The right of the attorney-client must be claimed at the time the disclosure is requested by a third party. However, please bear in mind that, except in extremely restricted cases, attorneys are legally bound to maintain the privileged existence of all confidential communications.


Practical tips

The following practical tips can help to maintain the privileged nature of communications:

  • Do not discuss correspondence between the attorney-client and third parties.

  • Attorney-client correspondence shall only be exchanged on a “need to know” basis for the purpose of offering legal advice or collecting information for the purpose of receiving legal advice and/or input.

  • Label written communications (including emails) to lawyers seeking or responding to legal advice as “Attorney-Client Information—Privileged and Confidential.”

  • Do not forward to third parties emails or other correspondence from lawyers containing legal advice or opinions.

  • Treat  Lawyer-Client Correspondence in a confidential manner (e.g., do not leave the materials on conference room tables or in any other location where the information may be easily viewed by third parties).