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Attorneys communicate with their clients under the protection of the attorney-client privilege every day. The privilege helps to ensure that those communications will not be disclosed to third parties and is meant to encourage candid communication between clients and their attorneys.
But the attorney-client privilege is not without its limits. When properly maintained, the attorney-client privilege provides strong assurances of confidentiality. But no one is excited to read a story about how things are running smoothly. There are exceptions to the attorney-client privilege and many communications involving attorneys are not privileged at all.
Here are our top ways to ruin the attorney-client privilege and have your embarrassing admissions get you in trouble.
You should not automatically expect your interactions with an attorney to be privileged simply because that person is an attorney. Attorney-client privilege only protects communications made for the purpose of seeking or receiving legal advice. This is a common issue when interacting with attorneys who work full-time within a company. For in-house counsel, much of the day may be spent on non-legal matters. Because the attorney-client privilege only protects communications seeking or receiving legal advice, discussions regarding business strategy will not be privileged. Indeed, courts have consistently rejected companies’ attempts to protect their business discussions with the attorney client privilege by simply inviting corporate counsel to meetings unrelated to any legal matter.
The attorney-client privilege applies between an attorney and their client, but it is not always clear whether you are the client. At the risk of stating the obvious, communications made to someone else’s attorney are not privileged. In fact, in such circumstances, the attorney may have an affirmative duty to disclose your communication to their client.
Employees often face this issue when dealing with their employer’s attorneys. There are many circumstances where a company’s attorneys may interact with company employees on legal matters. It is important to understand that the company’s attorneys represent the company, not individual employees. An employee’s communications with the company’s attorney will not be private with respect to company representatives and may not enjoy any privacy from third parties. For example, if an employee confides to a company attorney that he or she has bribed a foreign official, a crime under U.S. laws, and wants to discuss how to minimize their liability for doing so, that communication is may not be privileged and could be used against the employee in court later.
The attorney-client privilege can be waived like many other legal rights. Courts will generally see you as having waived your attorney-client privilege protection if you share otherwise privileged information with third parties. “Third parties” in this context refers to anyone who is not the attorney or someone from the attorney’s law firm.
Telling third parties about the conversations you had with your attorney is a good way to have a waiver problem. The most common wavier issues, however, arise from sloppy email practices. Never forward emails from your attorney to third parties. For example, we consistently see clients forwarding emails (often with draft contracts attached) to third parties and sharing our otherwise privileged comments regarding negotiating strategy in the process.
Similarly, when emailing with your attorney, do not include third parties on the “CC” line. Even including family members to keep them up to speed on the matter can be a waiver.
And finally, please do not mindlessly select “Reply All” to email responses meant for your attorney’s eyes only.
If you ask your attorney to help you commit a crime (or tort or fraud), the exchange will not be considered privileged. Indeed, if you ask your attorney for advice on how to execute and “get away with” a crime, not only is that conversation not protected by privilege, but the attorney may be obligated to disclose the conversation to authorities.
To fit the “crime-fraud exception” to the attorney-client privilege, the client must seek advice from the attorney on how to commit a crime. If the client has already committed a crime and is seeking legal advice on his or her criminal defense case from an attorney, that advice is considered privileged. The distinction is in the purpose of the interaction—is the discussion about something that has already happened and how to deal with the legal outcome, or is it about avoiding legal exposure for future wrongdoing?
The question of what does and does not constitute privileged material can be complicated. If you’re not sure whether certain interactions with us are privileged, ask us.