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.
If the non-client is considered a prospective client under Togstad, then the attorney-client privilege will extend to that prospective client.
The attorney-client privilege is one of the oldest privileges for confidential communications. This privilege assist when there is an attorney-client relationship. The privilege is asserted in the face of a legal demand for the confidential communications, such as a discovery request or a demand that the lawyer testify under oath.
The privilege also ensures that lawyers can provide candid and frank legal advice to their clients. For example, a lawyer might be more circumspect in discussing whether a client’s course of conduct amounts to fraud if that conversation could be disclosed to prosecutorial authorities or a potential adversary in civil litigation.
Common Interest Exception . If two parties are represented by the same attorney in a single legal matter, neither client may assert the attorney-client privilege against the other in subsequent litigation if the subsequent litigation pertained to the subject matter of the previous joint representation.
If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of a legal counsel, such communications are privileged unless the client considers covering up the crime or fraud.
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.
The communication must be made by a client . A formal retainer agreement is not necessary. It is enough for the individual to honestly believe he or she is consulting the lawyer for purposes of obtaining legal advice in advancing his or her own interests. A corporation can be a “client” too. In that case, the privilege protects communications between the company’s lawyer – whether an “in-house” lawyer employed by the company, like a general counsel, or “outside” counsel at a law firm – and the company’s employees so long as the communications fall within the scope of the employee’s duties.
The client’s communications must be made to counsel – a lawyer . The privilege also covers a client’s communications with individuals who assist the lawyer in the representation, such as a paralegal or an investigator.
The attorney-client privilege is perhaps all the more important in the criminal context where full and frank discussions with counsel are essential to ensure that an individual can be defended against prosecution or incarceration. The attorney-client privilege is different than a defendant’s right against self-incrimination under the US Constitution’s Fifth Amendment which provides that “no person … shall be compelled in any criminal case to be a witness against himself.” In other words, an individual can never be compelled to provide statements to the government or otherwise that could later be used to prosecute him. It is important to note that business entities have no Fifth Amendment rights even though their individual employees do. See Braswell v. United States, 487 U.S. 99, 104-110 (1988).
The privilege is held by the client and can only be waived by the client.
The courts have acknowledged this fact and amended the rules of procedure to allow a party to “clawback” inadvertently produced privileged documents and prevent waiver of the privilege. See the Federal Rule of Civil Procedure 26 (b) (5) (B); Federal Rule of Evidence 502 (d). To protect against waiver in this context a party to a litigation must do several things. First, they must be diligent in their efforts to detect inadvertently disclosed privileged documents. Second, they must immediately communicate with opposing counsel to request that the documents not be reviewed and that they be destroyed. Third, parties should enter into written agreements governing electronic discovery at the outset of litigation and file the agreement with the Court.
No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client. See Teleglobe Communs.
Federal courts often define the privilege to apply only if. (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made. (a) is a member of the bar of a court, or his subordinate, and. (b) in connection with this communication is acting as a lawyer;
Copy counsel on all communications in which legal advice is sought or in which confidential communications (like conclusions or assessments) are transmitted.
The US Supreme Court has long held that the attorney-client privilege applies to both individual and corporate clients. See Gardner v. Major Auto. Cos., 2014 U.S. Dist. LEXIS 44877 (E.D.N.Y. Mar. 31, 2014) (citing United States v. Louisville Nashville R. Co., 236 U.S. 318 (1915)). However, complications in the application of the privilege arise when the client is a business entity.
The attorney-client privilege is important because it allows for honest discussion between a client and his or her attorney. Privileged communications are typically not discoverable in litigation and generally cannot be used against the client (as long as the privilege has not been waived).
In addition to the requirements regarding communications that are to be protected by privilege, when a company is the client, the communication must also be regarding a matter that is within the scope of the employee’s, officer’s or agent’s duty to the company.
Another way to waive the attorney-client privilege is to include another person in your meeting or on your phone call with your attorney. While it may be awkward for your attorney to ask your friend who came with you to wait in another room while you meet, it is necessary to maintain the attorney-client privilege.
The privilege only applies if it relates to confidential communications — others cannot be present when the communication is made or copied on the email when the communication is sent — and needs to be for the primary purpose of obtaining a legal opinion or legal services (and not for the purpose of committing a crime or a wrongful act).
While the privilege would not protect the fact that an attorney and client met at a specific place at a specific time, it would protect the communications that took place there.
In an ongoing, headline-grabbing case, an expert involved in the Ceglia v. Zuckerberg suit copied and produced the document he was instructed to recover but also included a privileged email that was attached. Because no one associated with the legal team bothered to check the disk before it was sent to opposing counsel, the court ruled any claims of privilege had been waived.
Marking documents as privileged does nothing to protect them from disclosure if a litigation team hands them over to opposing counsel or other parties. Lawyers can never assume that marking documents as privileged in an electronic database will prevent their production.
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.
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.
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.
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.
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.
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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.