The right of the attorney-client cover s correspondence between an attorney and his/her client (oral or written) made for the purpose of offering legal services and is a basic and permanent pillar of American law. In early English law, the right emerged and was later adopted by the American legal system. The Supreme Court of the United States states that there is the privilege of “encouraging full and frank communication between lawyers and their clients and thus promoting wider public interests in the observance of law and administration of justice.” The right acknowledges the sound advice or advocacy in legal matters. It depends on the client being thoroughly notified by the counsel.’ See Upjohn Co. v. United States, 449 U.S. 3833 (1981).
In the criminal context, where complete and frank conversations with lawyers are necessary to ensure that a defendant can be defended against prosecution or imprisonment, the attorney-client privilege is perhaps all the more important. Under the Fifth Amendment of the US Constitution, the attorney-client privilege is different from the right of a defendant against self-incrimination, which states that “no person… shall be compelled to be a witness against himself in any criminal case.” In other words, a citizen may never be compelled to make statements to the government or otherwise that could be used to prosecute him later.
There are four fundamental elements required to determine its presence, no matter how the attorney-client privilege is exercised:
made amongst privileged persons;
with a view to finding, securing or supplying the client with legal assistance.
The privilege to apply is often specified by federal courts only if:
(1) the claimed privilege holder is or is trying to become a client;
(2) the person to whom the notification was made
a) is a member of the bar of a court, or his subordinate, and
b) is working as a lawyer in connection with this communication;
(3) The correspondence relates to the fact that the attorney has been told of that fact.
a) by his customer
b) without the presence of strangers
c) for the primary purpose of securing either an opinion on the law, or an opinion on the law, or legal services or help in certain legal proceedings and not assistance in some legal proceedings.
d) in order to commit an offense or tort; and (d) for the intent of committing an offense or tort;
(4) the right has been asserted and not waived by the client.
In addition to protecting correspondence, even though the opinions have not been conveyed to the consumer, the legal right applies to the legal opinions (work product) produced by counsel during customer representations. The right, however, does not apply to information relayed to counsel so that a client can actually shield bad evidence by giving it to counsel. The contact itself would be preferred, but the consumer could also be required to testify about the truth of the communication (absent a Fifth Amendment right to refuse).
Business companies need to know how far the right reaches or risk completely losing it. In Upjohn, the Supreme Court held that the right of the attorney-client is covered by communications made to in-house counsel by employees during an internal investigation of improper activity, made at the request of management for the purpose of offering legal advice. The Court specifically rejected a “control group” test previously used that would only apply the right to correspondence between in-house counsel and employees at the senior management level. In reaching its decision, the Court argued that lower-level workers will frequently participate in behavior that causes significant liability for the organization and will have knowledge that is necessary for counsel to recognize in order to offer appropriate legal advice.
As it might seem, the Upjohn holding is not as large. In that case, the Court applied the right only on the basis of relevant evidence, including:
the investigation of in-house counsel was directed by management to assist him in offering legal advice on enforcement issues;
the lawyer made clear the purposes of his inquiry and the fact that, when he talked with or otherwise connected with the workers, he represented the company; and
The lawyer made it clear that their messages were “highly confidential.”
In the absence of these guarantees the right is lost. It is very possible for a protected email to be widely circulated to those not interested in an investigation or legal dispute in this era of electronic communication at which point privilege is waived.
Reports prepared by third party experts can be added to the attorney-client privilege because they are made at the request of an attorney and the intent of the report is to provide the attorney with information for the purpose of providing the client with legal advice.
When the consultant is retained directly by counsel and counsel guides the actions of the consultant, an argument of attorney-client privilege for interactions with consultants is far stronger.
Generally, supplying some other third party with otherwise protected information will waive the privilege. “Those who assert the privilege will not be granted greater protection by the courts than their own precautions warrant.” The right can be waived if the client or attorney does not take appropriate measures to protect and maintain the confidentiality of privileged communications.
When a corporation tries to both claim and withhold privileged communications, an implicit waiver of the attorney-client privilege occurs. For example, if a corporation discloses a protected investigative report prepared by counsel to assist in its defense or to attempt to minimize harm, the right of the attorney-client could be waived not only as regards the report, but also all the underlying records, correspondence and details that formed the basis of the report. In other terms, a business should not pick and choose valuable information to be used as a sword and at the same time assert privilege as a shield against bad facts found in the same privileged correspondence.
Electronic messaging is a traditional battlefield in the attorney-client privilege field of litigation in the modern age. Emails, text messages or some other form of electronic communication include almost any argument in litigation these days. We refer to this in the United States as “electronic discovery” or “E-discovery.” Traditional business disputes can entail the analysis and production of thousands of emails dating back several years, often. Getting cases involving millions of electronic files is not uncommon. The sheer volume of this information means that to decide whether it is privileged, it is virtually impossible to check each and every email. Counsel must rely on the resources of electronic discovery analysis that scan for key terms and file forms. There is always the risk, however, that privileged records will be created unintentionally.
Make counsel maintain clear written orders from consultants, experts and surveyors that their working product (analysis and reports) be given directly to counsel.
Be mindful of who is included and include only those needed for representation.
Never forward correspondence received from counsel without first addressing the impacts of doing so with counsel. This often relates to messages on which counsel is copied.
Keep emails and records in secure areas or as password-protected files protected by attorney-client privilege. Do not allow details to be accessible on the server in general.
In the circumstances, employee witnesses interviewed by counsel may receive a “Upjohn warning” detailing the application of the right of attorney-client. The intent of the notice is to make it clear that the attorney represents the business and its interests (not the worker) and to emphasize that the relationship between the attorney and the client only occurs between the attorney and the business and can therefore only be waived by the firm.
Communicate with counsel in the course and scope of a federal investigation or in response to subpoenas and/or the use of such information as an affirmative protection regarding the effects of supplying documents and correspondence covered by the attorney client privilege.
In cases involving electronic discovery, counsel should ensure that, before engaging in discovery, an effective electronic discovery agreement (with a clawback provision) is concluded and filed with the court.