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Where to Start: Attorney-client Privilege

The attorney-client privilege is one of the oldest and most valued rights. It protects a lawyer from being pressured to testify against his client. The object of this privilege is to ensure that clients receive reliable and professional legal advice by facilitating full disclosure to their lawyer without fear that the details will be leaked to others. The right extends to written and oral correspondence and covers both individual and institutional clients. The right extends from the lawyer to the employees of the legal office that promotes contact to and from the lawyer.

The right of the solicitor-client does not extend to any contact with the attorney. In order for the right to occur, the correspondence must be to, from or through a lawyer and must be confidential. In addition, the contact must be for the intent of obtaining or receiving legal advice. For example, an email or memoranda from one administrator to another on a legal matter is normally not privileged since such e-mails are not sent to or from a lawyer for the purpose of receiving legal advice.

Communications must be kept secret for the right to be given. The right may be extinguished if the content of the lawyer-client correspondence is revealed to third parties — or even to persons inside the organization who are not personally interested in the matter.

As far as email communications are concerned, take care before forwarding advice to another person, as such action can waive the privilege. It’s important to bear in mind how open an email contact can be. As a rule of thumb, if you’re not willing to put it on a blog, you may not want to put it on an email.

 

Attorney’s Work Product Doctrine

Attorney’s work-product is closely linked to attorney-client privilege. In general, the legal work-product involves papers, records and the like, which are collected or generated at the request of a lawyer in preparation of future legal proceedings.

 

Special circumstances that are not protected by privilege

The right of the lawyer-client does not apply to the fact that a meeting has taken place between the lawyer and the client or to the general topic of the consultation. It only covers the content of the communications during the consultation.

 

Presence of an attorney

Often an attorney is called upon to engage in events that do not generally require formal legal advice or representation. In such contexts, the right of the attorney-client does not apply. The presence of a meeting with the legal counsel is not covered merely because the lawyer is in the room. Where a lawyer is called upon to play a different role and may not serve as a lawyer, the right does not apply.

 

Correspondence with a copy to the attorney

General correspondence does not become a privilege unless a lawyer is included in those who obtain a copy or a “blind” copy. If the author attempts to communicate the substance of a lawyer’s advice to those within the company with a valid need to know, correspondence shall be privileged as long as the text falls within the scope of the covered written communications mentioned above.

 

Communication in the presence of a third party

The right is limited to correspondence that the client wishes to be confidential. Communications made in non-private environments or in the presence of third parties, which are not required for the reason for which the lawyer has been consulted, are not confidential and are not covered by privilege.