The Trusted Advisor's Dilemma – Maintaining the Attorney-Client Privilege as In-House Counsel1 I. Attorney-Client Privilege A. What It Does:The privilege protects from disclosure certain communications between lawyer and client.
Full Answer
What does attorney client privilege mean in law?
Definition. Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret. 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.
Are discussions of previous acts subject to the attorney-client privilege?
Discussions of previous acts are generally subject to the attorney-client privilege. If, for example, if a client tells his lawyer that he robbed a bank or lied about assets during a divorce, the lawyer probably can't disclose the information.
What is the privilege of legal advice?
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.
Is the attorney-client privilege a rule of evidence?
( United States v. White, 970 F.2d 328 (7th Cir. 1992); Swidler & Berlin v. United States, 524 U.S. 399 (1998).) The attorney-client privilege is, strictly speaking, a rule of evidence.
What is the source of the attorney-client privilege?
Evidence Code 954 is the California statute that makes communications between attorneys and their clients privileged and confidential. This is what is known as the “lawyer-client privilege” (or the “attorney-client privilege”).
What is meant by the attorney-client privilege and what is the exception to this privilege?
The attorney-client privilege protects most communications between clients and their lawyers. But, according to the crime-fraud exception to the privilege, a client's communication to her attorney isn't privileged if she made it with the intention of committing or covering up a crime or fraud.
What is the meaning of attorney-client privilege?
Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret. 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.
What is the attorney-client privilege and why it is important?
The attorney-client privilege is the backbone of the legal profession. It encourages the client to be open and honest with his or her attorney without fear that others will be able to pry into those conversations. Further, being fully informed by the client enables the attorney to provide the best legal advice.
Which of the following may not be protected under the attorney-client privilege?
Which of the following may not be protected under the attorney-client privilege? A client who orally confesses to a crime.
What is the difference between confidentiality and attorney-client privilege?
The main difference between attorney-client privilege and attorney-client confidentiality is that the former is an evidentiary principle while the latter is an ethical principle.
What is the attorney-client privilege quizlet?
Attorney-Client Privilege. A confidential communication between a client and an attorney for the purpose of seeking legal advice or representation is privileged.
What does privilege mean with respect to lawyer client relationship and give an example?
Communications and documents protected by solicitor-client privilege are confidential as between the client and the lawyer. This means that what might otherwise be relevant evidence or information, admissible in court or required to be disclosed to the other side in a lawsuit, can be kept confidential.
What happens if a lawyer break attorney-client privilege?
Speaking to a lawyer in a public place with other people is another example where the information may get out without consequences to the attorney. Otherwise, a lawyer who breaches the attorney-client privilege could face serious consequences for an ethical violation, such as disbarment and criminal charges.
Why the attorney-client privilege is the main underpinning of the attorney-client relationship?
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.
How do you maintain legal privilege?
Legal advice privilegeThere must be a lawyer present. ... There must be an 'authorized' client present. ... There must be a communication. ... Not all preparatory material is privileged. ... The communication must be 'legal advice' ... There need not be a lawyer present. ... Litigation must be afoot or in contemplation.More items...
How do you protect privileged information?
To ensure confidential status in a privileged communication relationship, the communication made between the two parties must take place in a private setting–for example, a meeting room–where the parties have a reasonable expectation that others might not overhear them.
What is attorney-client privilege?
THE PRIVILEGE. The attorney-client privilege protects the confidentiality of communications between a client and its attorney when the communications are intended to be confidential and confidentiality is not waived. If a communication, for example an e-mail sent from a client to its attorney or a memorandum prepared by the attorney and sent to ...
Who is entitled to inspect opinions of counsel procured by the trustee to guide him in the administration of the trust?
The Court held that “a beneficiary is entitled to inspect opinions of counsel procured by the trustee to guide him in the administration of the trust.” The court reasoned that the memorandum “was prepared ultimately for the benefit of the beneficiaries of the trust and not for the purpose of the trustee’s own defense in any litigation against [the Trustee],” and that “the ultimate or real clients were the beneficiaries of the trust, and the trustee . . . in his capacity as a fiduciary, was, or at least should have been, acting only on behalf of the beneficiaries in administering the trust.”
What did the beneficiaries request during discovery phase of litigation?
During the discovery phase of litigation, the trust beneficiaries requested that the Trustee produce the memorandum prepared by the law firm. The Trustee declined based on attorney-client privilege. The beneficiaries requested that the Court of Chancery compel production of the memorandum. The Court of Chancery agreed with the beneficiaries and compelled the Trustee to produce the memorandum.
What was the trustee's opinion in Riggs?
In Riggs, the Trustee filed a petition for instruction with the Delaware Court of Chancery. After the Trustee filed the petition, the Trustee contacted a law firm and requested a legal opinion about the matters in the petition for instruction and about potential tax litigation involving the trust. The law firm prepared a memorandum and provided it to the Trustee. The Trustee subsequently paid for the law firm’s services out of the assets of the trust. The trust beneficiaries ultimately filed suit against the trustee for breach of fiduciary duties.
What is the policy of preserving the full disclosure necessary in the trustee-beneficiary relationship?
The Court weighed the policy interests supporting the fiduciary exception against the policy interests supporting the privilege and found that “The policy of preserving the full disclosure necessary in the trustee-beneficiary relationship is here ultimately more important than the protection of the Trustee’s confidence in the attorney for the trust.”
Is ERISA a fiduciary exception?
The application of the fiduciary exception to ERISA litigation is not surprising since the duties of an ERISA fiduciary are modeled after the duties required of trustees. As the 5 th Circuit Court of Appeals has noted, “ERISA does not expressly enumerate the particular duties of a fiduciary, but rather relies on the common law of trusts to define the general scope of a fiduciary’s responsibilities.”
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 ...
Which case fought the right to information?
While numerous cases, including United States v. Leventhal, fought this policy, courts have long upheld the government's right to this information. States may also apply different client-attorney privilege law. In Washington state, the privilege only protects client communications; whereas in California, the communications ...
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 ...
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 privileged attorney?
The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients' secrets, nor may others force them to. The purpose of the privilege is to encourage clients ...
What is the client privilege?
The Client's 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.
Why is confidentiality important in law?
The duty of confidentiality prevents lawyers from even informally discussing information related to their clients' cases with others. They must keep private almost all information related to representation of the client, even if that information didn't come from the client.
Can a lawyer disclose previous acts?
If, for example, if a client tells his lawyer that he robbed a bank or lied about assets during a divorce, the lawyer probably can't disclose the information.
Can an attorney disclose client secrets?
Under that rule, attorneys may not divulge their clients' secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers provide effective representation.
Can a lawyer disclose confidential information to a prospective client?
Preliminary communications between a potential client and a lawyer are normally subject to the attorney-client privilege. That means that lawyers can't disclose what prospective clients reveal in confidence even if the lawyers never ends up representing them. ( In re Auclair, 961 F.2d 65 (5th Cir. 1992).) To be sure, though, you should confirm with a prospective lawyer that the privilege applies before you reveal anything you want to keep secret.
Can a client overheard a lawyer testify?
But a client who speaks to a lawyer in public wouldn't be able to prevent someone who overheard the conversation from testifying about it. Similarly, a client can forfeit the attorney-client privilege by repeating a conversation with an attorney to someone else, or by having a third person present during a conversation with the lawyer. No matter who hears or learns about a communication, however, the lawyer typically remains obligated not to repeat it.
Why is attorney-client privilege important?
The protection provided by the privilege to communications between an attorney and his or her client are meant to encourage what the U.S. Supreme Court has termed “full and frank” disclosures between clients and their lawyers. Why is this important? Unless you’re honest and open with your attorney about the facts surrounding your legal case, your attorney will be unable to provide you with effective advice and representation.
What is the relationship between an attorney and the client?
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 or to have an attorney disclose any communications that occur while one is seeking legal advice.
What is the crime fraud exception?
The crime-fraud exception applies where a client either intends to commit or to cover up a fraud or a crime. Because the attorney-client privilege is a privilege that belongs to the client, the lawyer’s knowledge of the crime or fraud is irrelevant. What matters is the client’s intent. However, the exception will likely not apply ...
What is the presence of a third party?
Presence of a third party. Where communications take place between a client and his or her lawyer while in the presence of a third party who is not covered by privilege, the communication will not be protected by attorney-client privilege. So, for example, if you bring a friend to your meeting with your lawyer, ...
How to fully utilize a lawyer's services and expertise?
To fully utilize a lawyer's services and expertise, find the best fit for you and your case, build trust, and know when to walk away.
Is an attorney-client relationship a privilege?
In most cases it’s pretty clear that an attorney-client relationship giving rise to attorney-client privilege exists. You may have an engagement letter, or paid fees to your lawyer, for example. But what about the initial consultation between a prospective client and an attorney, especially when the attorney does not end up representing ...
Is a lawyer's client privilege?
Generally, any information you disclose to a lawyer regarding your legal issue on an initial legal consultation will be covered by attorney-client privilege, even if you do not end up hiring the lawyer to represent you.
What is the attorney-client privilege in a 10K?
Email and attached draft of company's Form 10-K to be filed with the SEC was protected by the attorney-client privilege. The email (and attached documents) was sent from the CFO to the Head of Investor Relations, the Deputy General Counsel, the Controller, and an employee in the controller division, with instructions to "provide their thoughts on it." The cover memo to the attached Form 10-K was addressed from the CFO to the Chief Executive Officer and the General Counsel. The court held that the email and attachment was a communication that sought legal advice rather than business advice because the "Form 10-K mandates the disclosure of extensive corporate information. The determination of what information should be disclosed for compliance is not merely a business operation, but a legal concern." The court also noted that the confidentiality of the communication was not breached because "in this case, all the non-lawyer individuals who were privy to the . . . email were . . . each . . . directly concerned with the matters of the Form 10-K disclosures." Roth v. Aon Corp., 254 F.R.D. 538 (N.D. Ill. 2009).
What is privileged communication?
For the communication to be privileged, it must have been made primarily for the purpose of giving or obtaining legal advice. A whole body of law has developed that seeks to answer the question of whether a communication between an attorney and a client had the primary purpose of giving or seeking legal advice .
What is a lawyer in the room?
"Lawyer in the Room." Sometimes a lawyer is called upon to participate in activities that do not necessarily call for specific legal representation or advice. In those contexts, the privilege does not apply. All conversation in a general meeting, for example, is not protected just because a lawyer is in the room. Rather, only the portion of the meeting where legal advice is solicited and/or given will be protected, while the rest of the meeting content is subject to disclosure. Where a lawyer is called upon to play a role other than as counsel (e.g., investigator), the privilege also may not apply.
What happens if a lawyer acts as a lobbyist?
If a lawyer acts as a lobbyist, matters conveyed to the attorney for the purpose of having the attorney fulfill the lobbyist role do not become privileged by virtue of the fact that the lobbyist has a law degree.
Why was the position paper written by outside counsel regarding carbon monoxide and cigarette smoking not protected under attorney client privilege?
Position paper written by outside counsel regarding carbon monoxide and cigarette smoking not protected under attorney client privilege because paper did not render legal advice. Rather, it was written to rebut public criticism of cigarette smoking and was "intended for public relations purposes rather than legal purposes." "It could have been prepared by scientists, tobacco industry non-legal personnel, or others with access to the non-legal literature cited in the paper." Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661 (D. Kan. 2001).
Is an attorney a document depository?
Attorney as a Document Depository: Documents that have been through the hands of an attorney are not automatically privileged merely because the attorney has touched the document. Merely copying an attorney on emails and memoranda will not make the document privileged.
Does an attorney's privilege protect a report?
Having an investigation conducted by an attorney does not automatically protect the report from disclosure. Below are general rules used when determining whether the privilege applies to attorney investigations:
Why is attorney-client privilege important?
Attorney-client privilege has been recognized as a foundational legal principle for centuries. The ability to have "full and frank" confidential conversations enables lawyers to represent their clients best and enables clients to consider their past conduct and remedy problems. It also encourages people to seek legal advice in the first place, as they can have the comfort in knowing that their honest conversations will allow them to receive better assistance rather than incriminate them.
Why do attorneys disclose client information?
An attorney may also disclose client information in limited circumstances to protect himself and his ethical obligations. For example, the attorney may obtain legal advice of his own regarding the representation of the client to ensure the attorney's compliance with his duties under the Rules of Professional Conduct. The attorney likewise may disclose a client's confidential communications to respond to a client's allegations that the attorney failed to properly represent him, or otherwise to establish a claim or defense against the client if a dispute arises between them. Or, if a client uses the attorney's services to commit a crime or fraudulent act, the attorney may disclose the information he reasonably believes is necessary to prevent, mitigate, or rectify the consequences of the client's conduct.
When does an attorney have to maintain confidentiality?
In that vein, an attorney's duty to maintain the confidentiality of a client's information begins even before the formation of a formal attorney-client relationship, when the client is merely a prospective client. And the privilege lasts beyond the end of the formal attorney-client relationship.
Is a client's information confidential?
But not all information that a client shares with his attorney is confidential; information does not become privileged merely because a client gives it to his attorney. To be clear, the privilege applies only to confidential communications, meaning communications that the client did not intend to be disclosed to third parties unless the disclosure furthers the attorney's provision of legal services. A client, for example, cannot hide documents or other tangible evidence with his attorney and claim that they are protected by privilege. Or, if other people are aware of the information, the client cannot claim privilege simply because he talked to his attorney about it.
Can a client waive the confidentiality of a lawyer?
Lastly, the privilege belongs to the client, and only the client can waive it. Clients may waive the privilege by sharing with others their conversations with their attorneys. Even the most innocent of intentions—such as confiding in a friend or family member for support or to process a hard situation that is the center of litigation—can remove the confidential nature of the client's communication with his attorney.
Why is attorney-client privilege important?
Attorney-client privilege has been recognized as a foundational legal principle for centuries. The ability to have "full and frank" confidential conversations enables lawyers to represent their clients best and enables clients to consider their past conduct and remedy problems. It also encourages people to seek legal advice in the first place, as they can have the comfort in knowing that their honest conversations will allow them to receive better assistance rather than incriminate them.
Why do attorneys disclose client information?
An attorney may also disclose client information in limited circumstances to protect himself and his ethical obligations. For example, the attorney may obtain legal advice of his own regarding the representation of the client to ensure the attorney's compliance with his duties under the Rules of Professional Conduct. The attorney likewise may disclose a client's confidential communications to respond to a client's allegations that the attorney failed to properly represent him, or otherwise to establish a claim or defense against the client if a dispute arises between them. Or, if a client uses the attorney's services to commit a crime or fraudulent act, the attorney may disclose the information he reasonably believes is necessary to prevent, mitigate, or rectify the consequences of the client's conduct.
What does "disclosure" mean in a lawyer?
that the client impliedly authorizes the lawyer to disclose so that the lawyer can carry out his representation of the client;
When does an attorney have to maintain confidentiality?
In that vein, an attorney's duty to maintain the confidentiality of a client's information begins even before the formation of a formal attorney-client relationship, when the client is merely a prospective client. And the privilege lasts beyond the end of the formal attorney-client relationship.
Is a client's information confidential?
But not all information that a client shares with his attorney is confidential; information does not become privileged merely because a client gives it to his attorney. To be clear, the privilege applies only to confidential communications, meaning communications that the client did not intend to be disclosed to third parties unless the disclosure furthers the attorney's provision of legal services. A client, for example, cannot hide documents or other tangible evidence with his attorney and claim that they are protected by privilege. Or, if other people are aware of the information, the client cannot claim privilege simply because he talked to his attorney about it.
Is this article intended to give legal advice?
This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.
Can a client waive the confidentiality of a lawyer?
Lastly, the privilege belongs to the client, and only the client can waive it. Clients may waive the privilege by sharing with others their conversations with their attorneys. Even the most innocent of intentions—such as confiding in a friend or family member for support or to process a hard situation that is the center of litigation—can remove the confidential nature of the client's communication with his attorney.
Purpose of Attorney-Client Privilege
- The purpose of the attorney-client privilege is to promote open and frank communications between clients and their lawyers. To represent a client effectively, lawyers must have access to all relevant information concerning the representation. If a client knows that certain information …
What’s Covered Under Attorney Client Privilege?
- The attorney-client privilege in the United States is often defined by reference to the 5 Cs: (1) a Communication (2) made in Confidence (3) between a Client (4) and Counsel (5) for the purpose of seeking or providing legal Counsel or advice. 1. All types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege. This may include …
Attorney Client Privilege Exceptions
- Some of the most common exceptions to the privilege include: 1. 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. 2. Fiduciary Duty . A corporation’s right to assert the attorney-client privilege is not absolute. An exception to the privi…
Examples of Attorney-Client Privilege
- Following are some examples of attorney-client privilege. 1. A client is seeking advice from a lawyer for a business transactionand discloses confidential information about their business operations. 2. A client disclosing information to his or her attorney about a past crime that he or she committed, and the communication was done in private. 3. A client disclosing to the attorne…
What Happens When Attorney-Client Privilege Is Broken?
- Specific sanctions may be imposed on an attorney who reveals confidential communications, but where there is the mere potential for disclosure, disqualification motions are common. These motions typically claim that a lawyer or firm should be disqualified due to the fact that the lawyer or a member of his firm had previously represented the party desiring disqualification. While dis…
The Privilege
The attorney-client privilege protects the confidentiality of communications between a client and its attorney when the communications are intended to be confidential and confidentiality is not waived. If a communication, for example an e-mail sent from a client to its attorney or a memorandum prepared by the attorney …
Case Study
- In Riggs, the Trustee filed a petition for instruction with the Delaware Court of Chancery. After the Trustee filed the petition, the Trustee contacted a law firm and requested a legal opinion about the matters in the petition for instruction and about potential tax litigation involving the trust. The law firm prepared a memorandum and provided it to the Trustee. The Trustee subsequently paid for …
Fiduciary Exception in Other Contexts
- It is interesting to note that federal courts have applied the fiduciary exception to the attorney-client privilege to contexts outside the scope of trust litigation, including shareholder derivative litigation and ERISA litigation. The United States Courts of Appeals for the 2nd Circuit, 4th Circuit, 5th Circuit, 7th Circuit, and 9th Circuit have all applied the fiduciary exception in the context of E…
Lessons Learned?
- FOR BENEFICIARIES: Depending on the particular facts and circumstances of each matter, Riggs and its progeny may provide very effective tools to gain access to otherwise privileged communications which may be very helpful to establish that the Trustee breached a fiduciary duty. FOR TRUSTEES: Who is paying for the legal advice you receive? You or the trust? Is the leg…
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