The attorney-client partnership has long been considered sacred by legal practitioners and the public and knowledge exchanged under the umbrella of the attorney-client privilege is viewed in a similar way. The right precludes the compelled publication of all private written and oral correspondence (including e-mail) made between lawyers and clients for the purpose of obtaining or providing legal advice. The luxury is very much alive and well, despite a few exceptions — but it works a little differently than many people believe. This article offers a description of the attorney-client privilege, and what it covers and what it should be extended.
The attorney-client privilege with attorney-client correspondence upholds the confidentiality principle. Through eliminating questions about disclosure of those correspondence to opposition counsel, the judge, or the public at large, it facilitates direct and honest communications between lawyers and their clients.
The right is held by clients and can only be waived by clients, not their counsel, in most cases. The right is most frequently claimed when referring to calls for discovery or when attempting to stop testifying under oath on such matters. It is important to remember, though, that the right covers only private conversations between clients and lawyers. This suggests that it will serve as a waiver and the rights will be lost if the messages are exchanged with a third party who is not part of the attorney-client partnership.
It is not an absolute safeguard, considering the wide nature of the attorney-client protection. The Model Principles of Professional Conduct of the American Bar Association states that lawyers can share privileged details while defending their clients if appropriate. For instance, lawyers may exchange records with their support staff or provide in court-filed documents some details gathered from their clients in order to do their work.
When facing a conflict with a previous client, such as a malpractice lawsuit, lawyers can also reveal certain details covered by the attorney-client privilege. In that case, documents such as billing reports or previous client authorizations might be appropriate for a lawyer to reveal.
Lawyers can also share sensitive customer representation details if they think it’s fairly appropriate to:
– Preventing certain death or serious bodily harm in a safe way;
– Preventing a client from committing a crime or fraud that is likely to damage the financial or property interests of another; or
– Preventing or mitigate serious damage to the financial or property interests of someone that is likely to arise from the crimes or fraud of a defendant, but only if the services of the solicitor were used in connection with such actions (the “Crime Fraud Exception”).
The attorney-client privilege may be lost through a waiver that may be deliberate or accidental which is typically irreversible until it happens. By not objecting immediately to a discovery request requesting confidential messages or if a consumer has consented to a waiver, the right will be waived. Waiver can also exist when third parties are disclosed with privileged communications (often in this situation a third party is present at the time the privileged communication occurs).
The attorney-client privilege does not cover their interactions pertaining to criminal activity when a client commits offenses with the aid of the attorney. However, privileged and unprivileged messages will easily get intermingled in these situations. Prosecutors examining alleged offences would like to examine all documents (privileged or not) to help in their compilation of evidence, while lawyers (and their clients) would like to claim the right to shield their confidential correspondence from scrutiny as much as possible.
In Upjohn Co. v. United States, the Supreme Court developed a four-factor standard to decide whether the attorney client right exists and if it can be questioned. In order to determine the privilege, according to the test:
– A “client” must be the person or individual asserting the privilege;
– There must be a contract between client and an attorney serving as an attorney;
– A complainant must speak to the prosecutor with trust in order to secure legal services or an opinion (not for the intention of committing a crime or fraud); and
– The client should invoke their rights (without having waived it).
The extent and length of attorney-client privilege has been questioned by many individuals, but they have not succeeded in restricting the scope to its relatively few exceptions.