how to explain attorney client privilege

What, Exactly, Is the Attorney-Client Privilege?

• Virtually all types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege, including oral communications and documentary communications like emails, letters, or even text messages.
• The communication must be confidential. ...
• The communication must be made by a client. ...
• The client’s communications must be made to counsel – a lawyer. ...

Full Answer

What constitutes attorney-client privilege?

Generally, the attorney-client privilege applies when:

• an actual or potential client communicates with a lawyer regarding legal advice
• the lawyer is acting in a professional capacity (rather than, for example, as a friend), and
• the client intended the communications to be private and acted accordingly.

How not to waive the attorney client privilege?

• Can communication be accomplished other than in writing?
• Is the written content anything that could be construed as improper?
• Who are the recipients, and why are they included? ...
• Clearly identify when seeking or providing legal advice.
• Only outside counsel should retain and communicate with consultants during litigation. ...

More items...

When does attorney client privilege begin?

The confidentiality privilege can begin when the attorney and the client have agreed on the representation of the client. This privilege can also be asserted when a person has attempted to become a client of the attorney when the information was disclosed. However, it is not always clear when the attorney-client relationship has begun.

What are the exceptions to the attorney client privilege?

Attorney Client Privilege Exceptions Some of the most common exceptions to the privilege include: Death of a client. The privilege may be breached upon the death of a testator-client if litigation ensues between the decedent’s heirs, legatees or other parties claiming under the deceased client.

What are the elements of the attorney-client privilege?

Although the precise definition of attorney–client privilege varies among state and federal courts, there are four basic elements to establish attorney–client privilege: (i) a communication; (ii) made between counsel and client; (iii) in confidence; (iv) for the purpose of seeking, obtaining or providing legal ...

What is the attorney-client privilege Why is it important?

A: Attorney/client privilege defines the confidential relationship between a client, or prospective client, and his or her lawyer. It's deeply rooted in the concept of trust and the idea that a client confronting a legal issue should be able to fully and completely trust the lawyer whose advice they are seeking.

Which of the following best describes the attorney-client privilege?

Which of the following best describes the attorney-client privilege? An attorney cannot be compelled to, nor volunteer to, reveal confidential communications made by the client to the attorney.

What is true about the attorney-client privilege?

The attorney-client privilege is, strictly speaking, a rule of evidence. It prevents lawyers from testifying about, and from being forced to testify about, their clients' statements. Independent of that privilege, lawyers also owe their clients a duty of confidentiality.

Can you break attorney-client privilege?

The attorney-client privilege is important to any lawsuit. But in some cases, the attorney-client privilege can be destroyed, either by design or by accident. What is the attorney-client privilege? In general, it means confidential communication between a client and her lawyer cannot be used in court.

What are the exceptions to the attorney-client privilege?

Section 126 of the Act lays down two exceptions to attorney-client privilege, namely: communication made in the furtherance of any illegal purpose; and. any fact observed by an attorney in the course of his or her employment that shows a crime or fraud has been committed since the start of his or her employment.

What are the 3 main privileged communications?

Commonly cited relationships where privileged communication exists are those between attorney and client, doctor–or therapist–and patient, and priest and parishioner.

What is the difference between attorney-client privilege and confidentiality?

The difference? Very simply put, attorney-client privilege stems from rules of EVIDENCE, whereas confidentiality stems from rules of ETHICS. But that's not all. Starting with confidentiality, every state has Rules of Professional Conduct that apply to lawyers who are licensed in that state.

How do you assert privilege?

The privilege may be asserted in advance of trial with notice to the parties. If a privilege is claimed during trial, the court must permit it to be asserted outside the hearing of the jury. It is usually reversible error to force a witness to claim a privilege in open court.

How strong is attorney-client privilege?

The attorney-client relationship is one of the strongest and most confidential professional affiliations. When someone retains an attorney, that attorney enters into a legally-binding agreement in which he or she cannot disclose the client's secrets or information to others.

What should you not say to a lawyer?

9 Taboo Sayings You Should Never Tell Your LawyerI forgot I had an appointment. ... I didn't bring the documents related to my case. ... I have already done some of the work for you. ... My case will be easy money for you. ... I have already spoken with 5 other lawyers. ... Other lawyers don't have my best interests at heart.More items...•

What type of communication is protected by attorney-client privilege?

Virtually all types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege, including oral communications and documentary communications like emails, letters, or even text messages. The communication must be confidential.

How is attorney client privilege waived?

Attorney-client privilege is waived by disclosing the substance of the communication to a third party. Waiver can be voluntary or involuntary (accidental).

What is privileged attorney?

What is privileged? The attorney-client privilege protects: A communication. Between privileged persons (attorney, client, or in some cases, an agent) Made in confidence.

What are some examples of legal functions?

Examples of legal functions: Advising company on existing law. Analyzing conduct for conformity with law or judgments regarding law. Advising on imminent litigation.

What does "sharing" mean in legal?

Sharing (in writing or orally) the substance of the lawyer’s advice.

When discussing legal matters, should meeting minutes indicate clearly that?

In board meetings, conference calls and other meetings: When discussing legal matters, Board meeting minutes should indicate clearly that: In-house counsel attended in his/her role as legal advisor. Discussions were for the purpose of providing legal advice. Discussions were confidential and intended to be privileged.

Is communication between counsel and a public relations firm privileged?

Ordinarily, communication between counsel and a public relations/crisis management firm is not considered privileged unless the party asserting the privilege can show that the communication was necessary for the client to obtain informed legal advice.

Who can exclude from privileged discussions?

Consider excluding from privileged discussions any observer or third party whose presence may prevent a claim to privilege (investment bankers, auditors, consultants).

What is privilege in a discovery?

The privilege is asserted in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath.

Does attorney-client privilege extend to non-client?

If the non-client is considered a prospective client under Togstad, then the attorney-client privilege will extend to that prospective client.

What is Attorney-Client Privilege?

Attorney-client privilege is one of the oldest concepts in legal history. The basic idea is that when you seek legal advice or help from a lawyer, you don’t have to worry about the lawyer disclosing the confidential information you share with them.

Understanding the Attorney-Client Relationship

For attorney-client privilege to apply, there has to be a well-established attorney-client relationship.

Is All Communication Privileged?

You might be surprised to learn what is and isn’t considered privileged communication.

Waiving Attorney-Client Privilege

It’s important to understand that clients, rather than lawyers have the privilege in an attorney-client relationship. This means that ultimately, the client has the right to assert this privilege – or waive it.

Do You Need an Attorney?

Anytime you deal with a legal matter, you should hire an attorney. The law is incredibly complex and it’s true that law enforcement and insurance companies will use anything you say against you if it benefits them.

What case defined attorney-client privilege?

In the well known 1950 case of United States v. United Shoe Machinery Corp, the court defined the requirements for attorney-client privilege as follows:

Why did the government narrow the attorney-client privilege?

In the early 1990's, the federal government began to narrow the attorney-client privilege in an attempt to fight the war on drugs. The feds pushed a policy that made attorneys disclose the name and amount of cash payments made by clients in excess of $10,000. While numerous cases, including United States v.

What is privilege in law?

Based on early English common law, the idea of privilege is a simple one - a client maintains the privilege to refuse to disclose or to have an attorney disclose any communications that occur while one is seeking legal advice. One of the basic tenets of the relationship between an attorney and the client is that any information which passes between ...

Why is privilege important?

This privilege is important as it allows a client the comfort to disclose all necessary factual information ...

What is the relationship between an attorney and the client?

One of the basic tenets of the relationship between an attorney and the client is that any information which passes between the two remains confidential. This concept is also known as the attorney client privilege. Based on early English common law, the idea of privilege is a simple one - a client maintains the privilege to refuse to disclose ...

Who can waive the privilege?

Client is the only person who may waive the privilege. Courts may make exceptions to the above if they find that great harm is caused to the other side by upholding the privilege. It is important to remember that a court may force disclosure of certain facts and that privilege will never apply to any communication concerning commitment ...

Who must be a certified attorney?

Person to whom the communication was made must be a certified attorney. Communication must occur solely between the client and attorney. Communication must be made as part of securing legal opinion and not for purpose of committing a criminal act. Client is the only person who may waive the privilege. Courts may make exceptions to the ...

What is attorney-client privilege?

To put it in simplified terms: attorney-client privilege is a rule which protects communications between attorneys and their clients. Any information discussed between yourself and your attorney is protected by this rule, and thus attorneys are not at liberty to disclose it. Thus, they are not legally obligated to discuss what you have talked ...

What to ask an attorney about a criminal case?

For example, if you’re facing criminal accusations, one of the first things your attorney may ask you during your initial consultation is whether you’re actually guilty or not. You are allowed to be honest and truthful with them —this is critical, as it will change how your attorney approaches your case. You’re also allowed to tell them important details about your case—details which may make or break your side of the story.

Does attorney-client privilege apply to conversations?

There are two other exceptions to attorney-client privilege that immediately forego the protection. First, attorney-client privilege does not apply to conversations in which the “client” is intending to defraud the attorney.

Is a lawyer's communication protected?

Any communication, either digital or otherwise, is protected by attorney-client privilege. This protection even extends to before you retain the attorney’s services —consultations and evaluations are also considered protected under attorney-client privilege, and attorneys cannot revel the information about your case, ...

Do you have to keep a secret conversation with an attorney?

This is where one extremely important exception comes in: the contents of a communication must remain between you and your attorney, and nobody else. This means any conversations held in a public place where something could be overheard are not protected by attorney-client privilege, and anyone who overhears any portion of a conversation could then testify about the contents of that conversation in court. This is because conversations in public are generally not assumed to have a “reasonable expectation of privacy”, which means that their contents are not protected behind attorney-client privilege. This is often why attorneys will decline to attend meetings in public places in order to discuss case details—they want things to stay protected, so they would rather hold these conversations in a private place.

When to use attorney-client privilege?

The attorney-client privilege may be used when a complaint involves serious concerns (including potential criminal claims), may develop into a lawsuit, or may have the potential to impact a large number of employees (e.g., class action status), among other considerations. It is always best to contact your legal department in advance of launching an investigation when you suspect that the gravity of the situation may give rise to significant liability. So be sure to discuss upfront whether your in-house counsel or outside defense attorney wants any particular emails or document exchanges protected. Further, if you have any question whether or not you should be invoking the attorney-client privilege, always err on the side of caution and protect the documentation trail as much as possible.

What is the rule for a lawyer-client privilege?

Rule 1: Address communications to your attorney. This could be your in-house counsel or outside counsel, but for the attorney-client privilege to become effective, it must be addressed to an attorney who is providing legal advice and counsel. The privilege does not protect communications between workers when no attorney is present. In other words, you can't send an email to your non-attorney boss and mark it "privileged and confidential" because without an attorney on the receiving end to provide legal analysis and advice, there's no mechanism to protect the communication from legal discovery.

What is the rule for copying a document?

Rule 4 : Copy only a limited number of people who have a legitimate need to know the information. Do not copy or share the document with others, or the privilege may be lost. After all, if you copy 15 people on the communication, a court will likely infer that it wasn't all that confidential or proprietary to begin with.

What is business legal 101?

While you may hope that you never need them, it's wisest to bring yourself up to speed with certain elements of "Business Legal 101" to protect yourself and your company from unwanted legal exposure.

Is attorney client communication privileged?

Again, not all attorney-client communications will be deemed privileged once submitted in court, so always proceed with caution and continue to communicate in writing as if your document may be used as evidence in court at some point and blown up and placed in front of a jury.

Does SHRM offer legal advice?

SHRM provides content as a service to its readers and members. It does not offer legal advice, and cannot guarantee the accuracy or suitability of its content for a particular purpose. Disclaimer

Can a court overturn a document that is privileged?

Just because you mark a document "Privileged and Confidential" doesn't mean that a plaintiff's attorney won't challenge the privilege and that a court won't overturn it. Therefore, let caution rule the day when it comes to exchanging emails, documents, or other electronic communications that you mark privileged.

What is attorney-client privilege?

The attorney-client privilege only protects confidential communication between you and your attorney that is related to their legal representation of you. If you include anyone else in the conversation, the things you say in the email (or that the attorney says in reply) likely won't be considered privileged.

How to include attorney client privilege in email?

Add a note about attorney-client privilege to the subject line. Include the words "Privileged," "Confidential," or "Attorney-Client Communication" in the subject line of your email. It helps to make these words stand out as much as possible, such as by typing them in all caps or putting asterisks on either side.

What does it mean when you have an email account that someone can access?

If you have an email account that others can access, that access could mean that any emails back and forth between you and your attorney are no longer privileged. This also applies to work email addresses, even if you're the owner of the company, if it's possible for anyone else to access your email account.

What to write in divorce email?

For example, if you're in the process of getting a divorce and want advice on how to talk to your spouse about matters that concern your children, you might write: "I am writing this email to request legal advice regarding communication with my spouse about our daughter's swimming lessons in a way that does not violate the judge's order."

What is privileged communication?

In the American legal system, communications between an attorney and their client in connection with the attorney providing legal assistance to the client are considered "privileged.". This means anything you write to your attorney (or your attorney writes to you) in the context of their representation of you is confidential.

What does it mean when your partner isn't considered the attorney's client?

However, if your partner isn't considered the attorney's client, this might mean that advice is no longer considered privileged. If you need to involve other people in a legal matter, your attorney can advise you on what to tell them and how so that your attorney-client privilege is preserved.

Can you discuss an attorney's email?

Refrain from discussing emails from your attorney. Even in a casual setting, making a comment such as "my attorney advised me not to do that" could result in an accidental waiver of your attorney-client privilege because you're discussing the content of the advice with someone else. If a subject comes up that you have advice from your attorney on, simply say that you're not at liberty to discuss it and change the topic of conversation. [7]

What Is Attorney-Client Privilege?

Attorney-client privilege refers to the legal privilege that maintains the secrecy of communications between a lawyer and his or her client. Attorney-client privilege is asserted when there is a legal demand for such communications, such as a demand for the attorney to testify under oath or a discovery request. In general, it covers oral and written legal advice and discussions between an attorney and his or her client.

How does attorney-client privilege affect the outcome of a legal case?

Waiving attorney-client privilege can have a significant impact on the outcome of a legal case because it results in the disclosure of attorney-client communications. In the corporate context, a court may use the per-se waiver approach or case-by-case waiver approach to analyze attorney-client privilege waiver.

What is a waiver of privileged information?

Waiver can also occur if privileged information is disclosed to a third party at a later time. There are a number of exceptions, including disclosure of information to language interpreters and a third party who happens to be the client of the attorney in the same matter. Failure to object – Failure to object usually occurs at ...

What is informed waiver?

Informed waiver – An agreement to waive the attorney-client privilege is another way to destroy it. Usually, a waiver must be expressed in writing, and it cannot be undone. Sometimes, a government entity will agree to waive attorney-client privilege to show that it has nothing to hide.

Does the attorney-client privilege apply to corporations?

v. United States case, the Supreme Court decided that the attorney-client privilege not only applies to individuals but corporations as well. Since the corporation itself, not the management, is the client, it is the holder of the attorney-client privilege. Although corporations can hold such a privilege, a corporation is considered a legal fiction and cannot speak for itself.

Is attorney-client privilege important?

Attorney-client privilege is an important factor in any lawsuit. However, in some situations, it can be destroyed, either by accident or design. There are five circumstances you need to take into consideration, including:

Can a corporation speak for itself?

Although corporations can hold such a privilege, a corporation is considered a legal fiction and cannot speak for itself. In another case, Commodity Futures Trading Commission v. Weintraub, the Supreme Court determined who has the right to waive corporate attorney-client privilege.

What is attorney client privilege?

Piercing the attorney-client privilege may be one of opposing counsel’s top priorities irrespective of the strength of their case. The privilege protects confidential communications between the client and the lawyer made for the purpose of obtaining or providing legal assistance, to “encourage full and frank communication . . . and thereby promote broader public interests in the observance of law and administration of justice.” United States v. Zolin, 491 U.S. at 562, 109 S.Ct. 2619 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ). But the privilege may not apply, it may be waived, or there may be exceptions to it. Counsel’s position on issues concerning potentially privileged documents impacts his or her credibility with the court, so it is advisable to be fully familiar with the scope of the privilege from the first time the issue arises in a matter, and not when it is too late.

Do officers, directors, and employees need in-house counsel?

Officers, directors, and employees must rely on in-house counsel to understand the difference. The predominant purpose of the communications should seek legal services for the privilege to apply. Copying in-house counsel on communications does not make them privileged.

Should outside counsel retain consultants?

Clearly identify when seeking or providing legal advice. Only outside counsel should retain and communicate with consultants during litigation. Retention by in-house counsel is preferable to retention by corporate management. Explain privilege limits and waiver to the client at the beginning and throughout a matter.

What Is Attorney-Client Privilege?

• Attorney-client privilege is one of the oldest concepts in legal history. The basic idea is that when you seek legal advice or help from a lawyer, you don’t have to worry about the lawyer disclosing the confidential information you share with them. This means that you can speak freely and openly and provide all relevant information. When your lawye...

See more on sweetlaw.com

Understanding The Attorney-Client Relationship

Is All Communication Privileged?

When The Lawyer-Client Relationship Doesn’T Apply

Waiving Attorney-Client Privilege

Do You Need An Attorney?