Attorney client privilege provides protection for confidential communications between an individual or corporation and their lawyer; however, any disclosing information outside this relationship will nullify it.
Knowledge of when attorney client privilege can be waived is critical for avoiding complications in any legal action. Here are a few instances when this privilege could be waived: 1. Subject Matter Waiver.
Client’s Intention to Confidentiality
The attorney-client privilege encourages clients to be open and honest with their attorney, knowing that all communication between them will remain private and ensures they receive optimal legal representation and advice.
However, attorney-client privilege only works when clients can reasonably expect confidentiality from their attorney and trust them with keeping information secret. If a client discloses personal details in public places where overhearing could occur without being adequately protected by attorney-client privilege.
Additionally, attorney client privilege only protects conversations related to legal representation or advice; an off-the-cuff conversation about someone’s divorce will not fall under its protection; similarly for electronic communications: for example if someone accidentally sends sensitive material about their case through an email to their attorney without knowing, that email may not fall under legal representation privilege protection.
Third-Party Participation
If a client communicates with an attorney in front of a third party – such as staff from their attorney’s firm, outside experts or consultants, an interpreter, or even relatives – it becomes much harder for the communication to remain confidential. Such individuals could include members of their attorney’s staff, consultants from outside sources or relatives themselves.
Recent cases have examined how this concept impacts communications between corporate executives and their attorneys in insurance coverage litigation. Most courts have held that privilege does not extend to any employee of a corporate employer unless communication pertains to business matters or is made pursuant to direction from corporate superiors with express permission to bind the corporation.
However, other courts have challenged this reasoning and determined that any disclosure to nonlawyers breaches the privilege. Thus it is vital for any lawyer communicating with third parties to clearly delineate their role and label any privileged communications prominently as such.
Third-Party Witnesses
Attorney Client Privilege can be broadly defined as any communication between an attorney and their client that cannot be discovered by third parties. This rule stems from the basic tenet that all conversations with legal advisers about legal matters must remain private, with client confidentiality maintained to provide quality legal advice.
While this rule is generally sound, it doesn’t always hold up in practice. A client who speaks to their attorney in public cannot prevent someone overhearing it from later testifying against it. Furthermore, an attorney-client privilege could be breached if confidential information was shared outside the relationship – with friends or loved ones for instance.
Communications between an attorney and their staff or expert witnesses do not automatically qualify as confidential just because the lawyer is present; what’s important is whether that third party fulfils an essential function in helping represent the defendant, such as an interpreter or investigator.
Third-Party Disclosure
The attorney client privilege and work product doctrine provide confidential communications between clients and their attorneys, permitting open, honest conversations about legal matters without fear of sharing confidential details with non-clients such as friends or family.
However, this principle has its limitations; for instance, any unprompted legal advice given at a bar or other social venue is not protected by privilege. Additionally, prisoners who tell their lawyer of plans to murder someone for insurance money cannot rely on attorney client privilege if a prison officer eavesdropping is present during conversations between attorney and client.
Courts also consider when third party participation in document drafting may impact whether privilege applies. In the case of a corporate entity, for instance, outside counsel may communicate with officers, directors and employees so long as those individuals do not possess binding power. Any disclosure of privileged communications to non-clients in such instances would likely lead to the waiver of privilege and work product protection provisions.
