Since the client owns the right, not the counsel, the client has the sole power to claim it or waive it. Because the clientis a company, the privilege is generally seen as a matter of corporate regulation. In other words, whether to claim or waive the right is determined by corporate managers or the control board, including officers and directors. Whether and until there is a transition in the control of the company, possession of the privilege is a spoil that passes to the successors; it does not stay with the previous corporate management.
The question of waiver most frequently occurs when a contact is observed by a third person or when the communication is not meant to be private by the customer. It is possible that the very existence of a third party would preclude the attorney-client protection from being established.
What if, after a confidential conversation between the lawyer and client, the contact is revealed to a third party? Has the prerogative been waived? Potentially. Unlike the constitutional privileges of a defendant, which can only be waived deliberately and consciously, a negligent, accidental or inadvertent leak can waive the attorney-client protection.
There are several public policy exceptions to the attorney-client privilege application. Many of the privilege’s most prevalent exceptions include:
1) Client’s death – If action arises between the heirs of the deceased, legates or other persons suing under the deceased client, the right may be infringed upon the death of a testator-client.
2) Fiduciary duty – The right of a company to assert attorney-client privilege is not absolute. When the company’s owners try to pierce the corporation’s attorney-client privilege, an exception to the privilege has been carved out.
3) Crime or Fraud Exception – If a person receives counsel from an attorney to aid with the promotion of a crime or fraud or the concealment of the crime or fraud after the commission, so the contact is not privileged. However, whether the client considers covering up the crime or fraud, once the client has performed a crime or fraud and then receives the advice of legal counsel, those conversations are privileged.
4) Common Interest Exception – Where two parties are joined in a single legal matter by the same counsel, neither client can, in subsequent litigation, claim the attorney-client privilege against the other if the subsequent litigation applies to the subject matter of the prior joint representation.
Not all aspects of the attorney-client partnership are protected by the attorney-client privilege or contained within it. The presence of the attorney-client relationship, for example, or the duration of the relationship are not privileged bits of information. The very essence of the services rendered by the counsel, including the terms and conditions of continuity, is, in effect, usually discoverable.
Likewise, the factual situations concerning interactions between a counsel and a customer, such as the date of the contact and the name of the individuals copied in the correspondence, are not privileged. The length of a session and the records demonstrating the same (e.g. calendars, appointment books) are not generally shielded from forced disclosure by parties in a meeting with an attorney. As with the compensation agreement between an attorney and a customer, these documents are usually discoverable, even where such discovery will create sensitive correspondence with the client.
Although the right of attorney-client is strongly founded as a legal doctrine that covers private correspondence between lawyers and their clients, it is not absolute in its implementation. In order to maintain the dignity of the right, the circumstances of the correspondence, its contents and even future behavior related to privileged communication must be carefully considered.