Local commentary has also emphasised a lawyer’s duty to assert privilege on behalf of his client.
The person might be part of the lawyer's staff, an outside party with relevant expertise (for instance, an investigator), an interpreter, or even a relative who acts in an advisory role. When determining whether the attorney-client privilege applies to a conversation involving a third person, courts generally consider:
The doctrine, an extension of the attorney-client privilege, applies where (1) a communication is made to a third party who shares a common legal interest, (2) the communications are made in furtherance of that legal interest, and (3) the privilege is not otherwise waived.
Although many courts emphasize that the attorney-client privilege should be strictly applied to communications between attorney and client, the attorney-client privilege does extend beyond the immediate attorney-client relationship to include an attorney’s partners, associates, and office staff members (e.g., secretaries, file clerks, telephone ...
In fact, the principles of the testimonial privilege may be traced all the way back to the Roman Republic, and its use was firmly established in English law as early as the reign of Elizabeth I in the 16th century. Grounded in the concept of honor, the privilege worked to bar any testimony by the attorney against the client. 1
Grounded in the concept of honor, the privilege worked to bar any testimony by the attorney against the client. 1. As the privilege has evolved, countless policy justifications have played a role in its development.
What is the result, however, when an employee such as Smith seeks advice in her individual capacity, as opposed to the corporate one? The courts will extend the attorney-client privilege to corporate officers, even as an individual, as long as there is clear evidence that the corporate officer communicated with counsel in the officer’s individual capacity concerning personal matters such as potential individual liability. Not surprisingly, the showing required of the corporate employee in this regard is a more stringent one. Moreover, even if the requisite showing is made, certain information might create a conflict of interest for the corporate attorney. In that case, the corporate attorney must end the conversation and advise the corporate employee to seek separate counsel. 15
Such an express acknowledgment may be demonstrated by an engagement letter, a fee contract, or even an oral agreement as to the scope of the representation. An attorney-client relationship may also be expressly acknowledged by the “appearance” of the attorney on behalf of the client, including filing pleadings in court for the client, drafting documents on behalf of the client, or appearing in court as the representative of a litigant. 11
We begin our analysis of the privilege with the obvious: before the privilege exists, there must be an attorney-client relationship. As elementary as this concept seems, many clients assume the relationship exists and mistakenly rely upon the protection of the privilege, but the privilege does not exist until the relationship is firmly established. Generally speaking, the attorney-client privilege does not take hold until the parties have agreed on the representation of the client.
See, e.g., United States v. Andrus, 775 F.2d 825, 852 (7th Cir. 1895) (holding that in a criminal case, silence may constitute an admission of guilt).
A communication relating to corporate legal matters between a corporation’s in-house counsel and the corporation’s outside counsel is normally subject to the privilege. 16 However, when the communication is between a representative of the corporation and the in-house counsel, the distinction is less clear.
Despite the general rule, there's an exception in most states: In general, when a third person is present, the attorney-client privilege continues to apply if that third person is there in order to aid the cause. Put more specifically, the third person must be present while fulfilling a role that furthers the defendant's legal representation.
On the other hand, a Missouri court found that a defendant charged with second degree murder had waived the attorney-client privilege because of a family member's presence at a client-lawyer meeting. During a prior divorce case, the defendant brought her daughter to a meeting with her family law attorney. Because the daughter wasn't essential in conveying information to the lawyer and wasn't reasonably necessary to protect her mother's interests, her presence at the meeting destroyed the privilege. So, the family law attorney's testimony about the meeting—given at the murder trial—was admissible. ( State v. Shire, 850 S.W.2d 923 (Mo. Ct. App. 1993).)
On the other hand, a Missouri court found that a defendant charged with second degree murder had waived the attorney-client privilege because of a family member's presence at a client-lawyer meeting. During a prior divorce case, the defendant brought her daughter to a meeting with her family law attorney.
The general rule is that, by allowing a third party to be present for a lawyer-client conversation, the defendant waives the privilege. That generally means that the prosecution can force the third party to reveal the contents of the conversation.
The court said that the presence of the parents, who had "an understandable parental interest and advisory role in their minor's legal affairs," didn't defeat the attorney-client privilege. That meant that a defendant couldn't question the witness about his conversations with his lawyer. ( State v.
Put more specifically, the third person must be present while fulfilling a role that furthers the defendant's legal representation. The person might be part of the lawyer's staff, an outside party with relevant expertise (for instance, an investigator), an interpreter, or even a relative who acts in an advisory role.
The daughter chose the law firm for her mother, transported her to the meetings, and put her at ease so she could communicate with her lawyers. The daughter also had relevant information and could aid her mother's memory.
The goal of this article has been to outline the general contours of a lawyer’s duty to assert legal advice privilege. The consequences of failing to assert legal advice privilege can be dire, although unmeritorious or overzealous assertions should also be discouraged. The duty to assert legal advice privilege flows from the notion of absolute privilege in English Common Law, which is founded on the “inviolability of lawyer-client communications” 57#N#Supra, n 17 at (3.161).#N#in order to promote “absolute candour between a client and his lawyer”. 58#N#Id, at (1.17).#N#To ensure that their clients’ privileged information are protected to the fullest extent permitted by the law, it is critical for lawyers, when issued with a notice or summons for disclosure, to carefully analyse the relevant statutory provisions and make an informed assessment as to whether and how far they can assert legal advice privilege.
Absolute privilege is in fact of relatively recent vintage – before the 1995 decision of Derby Magistrates, legal professional privilege was a “mere rule of evidence”. 8#N#Colin Passmore, Privilege (Fourth Edition, United Kingdom: Sweet & Maxwell, 2020) at (1-021).#N#Its elevation to a “substantive legal right in English Law” 9#N#Ibid.#N#requires some explanation.
Twenty-four years after Derby Magistrates was decided in 1995, Addlesee presented an opportunity for the English Courts to re-evaluate absolute privilege. The facts of Addlesee were, however, not concerned with the innocence of an accused person, but with the significantly less emotive issue of whether legal advice privilege subsisted despite the absence of a person entitled to assert it. The Court in Addlesee held that privilege was not lost merely because there was no person entitled to assert it.
In the author’s view, Lewison LJ’s views in Addlesee strike a sensible balance. On the one hand, overzealous assertions of privilege should be discouraged. On the other hand, lawyers should not be undercompensated in costs when reasonably discharging their duty to assert privilege. Nevertheless, there remains some uncertainty on how the duty to assert privilege should be exercised in contested proceedings.
Whether the client is a natural person or a corporation, the attorney-client privilege belongs only to the client and not to the attorney. As a result, clients can prevent attorneys from divulging their secrets, but attorneys have no power to prevent their clients from choosing to waive the privilege and testifying in court, talking to the police, or otherwise sharing confidential attorney-client information with third parties not privy to the confidential discussions. Clients may waive attorney-client privilege expressly by their words or implicitly by their conduct, but a court will only find that the privilege has been waived if there is a clear indication that the client did not take steps to keep the communications confidential. An attorney’s or a client’s inadvertent disclosure of confidential information to a third party will not normally suffice to constitute waiver. If a client decides against waiving the privilege, the attorney may then assert the privilege on behalf of the client to shield both the client and the attorney from having to divulge confidential information shared during their relationship.
The five-part test is typically the starting point in a court’s analysis of a claim for privilege. Each element appears straight-forward on its face but can be tricky to apply, especially when the client is a corporation and not a natural person. Corporate clients raise questions as to who may speak for the corporation and assert the attorney-client privilege on behalf of the entity as a whole. Some courts have ruled that the attorney-client privilege may only be asserted by the upper management of a corporation. A vast majority of courts, however, have ruled that the privilege may be asserted not only by a corporation’s officers, directors, and board members, but also by any employee who has communicated with an attorney at the request of a corporate superior for the purpose of obtaining legal advice. Upjohn Co. v. U.S., 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584, (U.S. 1981).
The fact that an attorney-client relationship exists between two persons is itself not typically privileged. U.S. v. Leventhal, 961 F.2d 936 (11th Cir. 1992). However, if disclosure of an attorney-client relationship could prove incriminating to the client, some courts will enforce the privilege. In re Michaelson, 511 F.2d 882 (9th Cir. 1975). Names of clients and the amounts paid in fees to their attorneys are not normally privileged. Nor will clients usually be successful in asserting the privilege against attorneys who are seeking to introduce confidential information in a lawsuit brought by a client accusing the attorney of wrongdoing. In such instances courts will not allow clients to use the attorney-client privilege as a weapon to silence the attorneys who have represented them. Courts will allow both parties to have their say in malpractice suits brought by clients against their former attorneys.