Attorney-Client Privilege: Use It, Don't Lose It

When you retain a licensed attorney, you generally have the right to refuse to disclose all "confidential communications" between you and your attorney.  You also have the right to prevent others from disclosing confidential communications.  In U.S. law, this is known as the attorney-client privilege.

If your attorney delegates responsibilities to others, the privilege usually extends to these people.  This is true even if they aren't licensed attorneys.  In addition, the privilege generally extends to communications between your employees and your attorney.  To be enforceable, there should be a written agreement between the attorney and those working under his or her supervision. 

However, what the courts consider "confidential communications" protected by attorney-client privilege isn't as broad as you might think.  For instance, documents and other written materials your attorney produces ("work product") aren't generally privileged unless prepared "in anticipation of litigation."  Nor does the privilege extend to work your attorney does at the direction of another person; i.e., an accountant.  In addition, if your attorney isn't acting as a lawyer, but in another capacity (e.g., to provide investment advice), the privilege generally doesn't apply.

There are also important differences between the states in the scope of protected communications.  California law, for instance, has a more expansive interpretation of confidentiality than virtually any other state.

Preserve the Privilege!

Unfortunately, it's easy to waive attorney-client privilege in a number of situations:

• If you disclose to others information that your attorney conveyed to you in confidence, or that you conveyed to your attorney. 
• If someone who isn't a client, employer or under contract to the attorney participates in a conversation between you and your attorney. 
• If your engagement with an attorney involves tax planning, especially planning construed by the IRS as a tax shelter. 
• If written communications to and from your attorney don't contain a statement stipulating that they are confidential and subject to attorney-client privilege. 
• If you communicate with your attorney via unencrypted e-mail. If you must send and receive unencrypted e-mail from attorney, use a computer that only you can access.

Finally: discussions with an attorney someone else is paying for (e.g., your employer) aren't always protected.  In any kind of investigation by your employer or a government agency, hire your own attorney.  Don't rely on the "free" advice provided by an attorney employed by your own company.

Copyright © 2008 by Mark Nestmann