Attorney-Client Privilege

You may ask why attorneys in court would be entitled to invoke privileges and keep secrets – especially when the goal of a court proceeding is to ascertain the truth, so that the proper law can be applied and justice can be served. Here’s the theory. A privilege is meant to encourage a client who needs legal advice to tell the lawyer the truth. Without knowledge of the truth, a lawyer will be less able to help the client. Privileges “encourage the free exchange of information between the attorney and the client.” See State v. Holsinger, 124 Ariz. 18 (1979). 

The legislatures and the courts have decided that maintaining the attorney-client privilege serves the administration of justice, even though it may, at times, interfere with the quest for truth. The adversarial system would likely suffer if attorney performances were weakened by the inability to garner protected information from clients. 

The legal privilege against compelled disclosure governs the extent to which a lawyer may be required to disclose what a client has revealed to the lawyer in confidence. The privilege exists to insure that every person may freely and fully confide in his lawyer without fear of exposure or detrimental effect. See Upjohn Co. v. United States, 449 U.S. 383 (1981).
Four elements are necessary for the attorney-client privilege to apply:

1. There must have been a communication;
2. The communication must be between someone who was (or wanted to be) a client to an attorney acting as such at the time;
3. The communication must have been made in confidence (without strangers present); and
4. The communications must have been made for the purpose of obtaining legal assistance.

In essence, the attorney-client privilege protects against the required disclosure of any confidential information given by a client to his attorney during the course of seeking professional legal advice. “Required” implies that for the attorney-client privilege to be invoked, there must be a demand for information by subpoena or other order sanctioned by the law. A client may not, at least from a technical legal perspective, invoke the attorney-client privilege without first receiving an order to produce information. Once there is a request for information from an adversary, a client has the privilege to refuse to disclose and/or to prevent another person from disclosing confidential communications between that client and his attorney. 

The confidential communication must be related to a consultation for the purpose of rendering or obtaining legal advice. If the lawyer is acting in a role other than as an attorney, then there can be no privilege. 

EXAMPLE: Attorney Atbahr is called by his next-door neighbor, Bill McCoy, to witness a will. If for some reason, the witnesses to McCoy’s will are subject to a subpoena, may McCoy invoke the attorney-client privilege and protect against disclosure of information since Atbahr was a party to the will’s creation?

A lawyer witnessing a will or serving as a trustee may be required to disclose information related to the will or the trust, because the attorney was not acting in the capacity of an attorney on behalf of a client. As such, McCoy may not invoke the attorney-client privilege to protect against Atbahr’s disclosure.

Sometimes it is a bit difficult to distinguish between general facts that the client is required to disclose and those confidential communications of facts by the client to the lawyer during the process of seeking legal advice that are protected from forced disclosure. Is everything discussed between a client and lawyer protected once it is confidentially communicated? Clearly that cannot be the case, otherwise the search for truth would be fatally hampered. 

EXAMPLE: In order to make things clearer for his lawyer, Client Bhig Bizz drafts a document that includes a list of business deals entered into with a plumbing supply firm over the last fifteen years or so, plus a host of facts and figures related to each business deal. Simply because the list was drafted for the purpose of obtaining legal advice does not mean the facts related to the business deals included within the document will be privileged. 

Not everything communicated to an attorney is going to enjoy protection. The “underlying facts” of a case are not protected. A client who is obligated to disclose facts in discovery or in another situation will not be relieved of that obligation simply because he disclosed those facts confidentially to his lawyer. Clients and lawyers must fulfill their obligations to respond truthfully to discovery requests for factual information, and the protections offered by the attorney-client privilege will not prevent the disclosure of underlying facts essential to resolving the litigation. 

Documents that were prepared by or for an attorney will only enjoy protection if they were intended to remain confidential. Documents that a client prepared for purposes not related to the attorney-client relationship, but later given to the attorney, are not privileged communications at all.

Think about business files or personal letters – you cannot simply hand over such documents to your lawyer and assume that just because you “communicated” them to the lawyer, the documents will be privileged. Likewise, a party cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney. 

EXAMPLE: Laura Flint Boil gives her attorney, Serge Sergeopolous, an eight-year old file kept in her office documenting deals made long ago with Underworld & Associates. These deals are under scrutiny by the United States Attorney’s Office. 

Simply because Boil delivered the files to Serge does not protect the files from discovery by the federal prosecutors. Neither the files nor the facts themselves were intended as confidential communications with an attorney. They were business documents created to memorialize the deals. Therefore Boil will not be entitled to invoke the attorney-client privilege in regards to the documents if and when the prosecutors request them. 

In order to better understand whether a client is entitled to assert the attorney-client privilege upon a request for information, it might be useful to go through the six questions we explored in the “introduction to confidentiality.” 

1) Does a relationship exist that the legislature and courts have aimed to protect?
The law of attorney-client privilege is designed to foster bonds of trust between a client and a lawyer, in the hope of strengthening the quality of argumentation. 

Remember also that a communication will be within an attorney-client relationship only if the reason for the communication is for the client to seek legal advice or assistance. The person seeking advice need not actually hire the attorney, and any discussions, even prior to retention, will enjoy protection. 

2) Is there a communication? 
Originally, only verbal communications between an attorney and a client were protected. Coverage has been expanded to include spoken or written words, as well as acts which are intended to convey a message. 

As such, communications may include documents, provided that they were prepared for the purpose of seeking legal advice. The “underlying facts” in the document might be subject to discovery. However, the documents themselves might be protected. We will learn some more about document preparation (especially notes written by lawyers for the purpose of helping to represent the client) when we talk about attorney work product, another confidentiality doctrine. For now, just remember that confidential communications between an attorney and a client will enjoy protection if the purpose of the communication is related to consultation for legal advice. 

3) Was the communication confidential? 
The attorney-client privilege is limited to those communications that the client intended to be confidential, or those communications that the client could reasonably assume, under the circumstances, would be understood by her attorney to be confidential. 

“Confidential” does not mean that a client must be communicating with an attorney alone in a closed room. The presence of assistants – including paralegals – who are essential to maintaining the attorney-client relationship will not break the privilege. If a client discloses the content of an attorney-client confidential communication to third persons, whether by mistake or on purpose, the communication will lose its privileged status. The presence of eavesdroppers might be fatal to the privilege as well. The eavesdropper, according to the majority of courts, may testify as to an otherwise privileged communication. 

4) Is the Holder asserting the privilege? 
When it comes to asserting the attorney-client privilege, the client is the holder of the privilege. If the client dies, and litigation continues regarding the dead client, his successor or personal representative is entitled to assert the privilege. The privilege does not terminate upon the client’s death. See Swidler & Berlin v. United States, 524 U.S. 399 (1998).

5) Was the privilege waived? 
If a client voluntarily discloses information that would have been protected by the attorney-client privilege, waiver of the privilege occurs. Waiver will also result if a client fails to assert the privilege when she has the opportunity. Oftentimes there is an issue as to how much of an otherwise protected communication must be divulged upon disclosure of part of the communication. 

This is a serious thorn in the side of attorneys at big law firms working on document production on behalf of a large corporate client. Big firms hire teams of lawyers to sort through sometimes millions of documents to check whether or not the documents contain attorney-client protected discussions. If a document containing protected information is accidentally produced, there is a chance a judge will order the entire subject matter that the attorney-client communication covered to be produced to an adversary. It’s sort of like “opening up a can of worms” – and in contentious litigation, involuntary disclosure of protected information can be a nightmare for managing attorneys. The discovery process in big corporate litigation, as a result of the volume of documents invariably associated with a dispute, often takes an eternity because of the work that goes into document review for privilege. 

6) Are there exceptions to the privilege? 
Perhaps the most important exception is the “crime or fraud” exception to the attorney-client privilege. If a client seeks a lawyer’s help to commit a crime or fraud, no privilege arises for any communications related to the illegalities. There is absolutely no reason to protect communications which facilitate criminal activity by clients and attorneys, so the law provides a needed exception. 

EXAMPLE: Cliff Clay contacts his attorney, Al Pots, regarding their ideas for an illegal underground postal cult that will compete secretively against the United States Postal Service. They are prepared to begin interviews for carriers this Thursday and want to outline precisely the questions to ask candidates. Though Clay’s communication with Attorney Pots may be for the purpose of seeking advice, it is not “legal” advice, but illegal – and is for an illegal purpose altogether. Therefore the communication would not later enjoy protection if the government mandates disclosure. 

Another exception involves a “breach of duty” by a client or an attorney. If litigation is related to an issue regarding obligations of the parties in an attorney-client relationship, then the client is not entitled to assert the privilege. 

EXAMPLE: Georgia Peech is suing her attorney, Blair Blight, for malpractice, claiming that she would have won a trial against Chiquita Banana were it not for Blight’s incompetence. In order to resolve the suit, the parties may be required to disclose information that in another setting would be privileged. The same goes for actions for fees. If Blight sues Peech to recover attorney fees incurred during the trial against Chiquita, then Peech might be obligated to disclose the contents of otherwise privileged communications. 

If two or more clients consult a lawyer regarding an issue that relates to both of them, their communications are not privileged as between one client and the other client. 

EXAMPLE: Oink and Porker are former partners who owned a children’s petting zoo. Oink is suing Porker because Porker refused to let kids pet the llamas (he thinks llamas are violent since one of them once accidentally kicked him in the groin). Together, Oink and Porker were represented by Attorney Hayman. Conversations between Oink, Porker, and Hayman regarding the partnership that would otherwise have been privileged may have to be disclosed in order to resolve the dispute between Oink and Porker.