The privilege encourages open and frank communication between clients and their attorneys, which is essential for effective representation. This includes communications related to business concerns such as corporate reorganization or the tax implications of an investment decision.
This privilege also covers drafts and documents prepared in preparation of litigation; however, it does not extend to information related to illegal activities or fraud.
Legal Advice
Lawyer-client privilege allows you to openly discuss your legal concerns with an attorney without fear that they will be revealed in court, so that you can receive the best legal advice possible to protect your rights and interests.
But invoking attorney-client privilege requires more than simply telling an attorney what needs help; it must be clear that any communication initiated by and related to your need for legal advice, for instance a discussion with outside counsel or your general counsel on how to proceed in a business dispute may well fall within its protection, while discussions between employees about tax implications of corporate reorganizations likely won’t.
Communication must remain strictly confidential to protect the attorney client privilege. Any time your communication with your lawyer is shared with anyone other than yourself and/or your lawyer – including co-workers copied on emails and close friends who might access them without your prior notification that any information within is privileged and should remain private – any attorney-client privilege will be lost and your communications can become public knowledge.
Business entities should recognize that while the Supreme Court in Upjohn has upheld that corporate employees may claim attorney client privilege, its scope is limited; for example, communications related to illegal conduct by lower level employees will likely not fall under this privilege unless made as part of an internal investigation conducted at management’s direction and specifically seeking legal advice.
Confidential Communication
An effective lawyer’s ability to guide his or her client through legal obstacles and make sound business decisions depends on being able to share confidential information with them freely, which requires building a trusting relationship that allows the client to discuss sensitive topics freely and candidly with him/her.
The attorney client privilege provides an effective mechanism for building and upholding trust between attorney and client, encouraging open dialogue. It prevents attorneys from sharing confidential information from clients with third parties without their prior authorization – this applies both orally and written communications, including email; as well as discussions among employees or business associates of clients.
Companies can protect themselves from adverse facts that surface during discovery in court that would have been easier to address with legal representation prior to litigation. Furthermore, an attorney can offer guidance on avoiding similar problems in future.
One exception to this rule exists if a client discloses an intent to commit a crime that endangers other people; then their lawyer may be required to notify law enforcement of this intention; however, due to public interest considerations this exception is usually only used sparingly as defense attorneys need time with clients to discuss all relevant information for providing the best legal representation possible.
Waiving the Privilege
The attorney client privilege encourages candid and frank communication between attorneys and their clients, leading to superior legal advice. For instance, clients may feel less reluctant to discuss the legality of their course of conduct with counsel when knowing that it can’t be disclosed to prosecutorial authorities or civil litigants as soon as they learn that those discussions won’t be revealed in civil litigation proceedings.
However, the privilege isn’t absolute: its protection can be waived even unknowingly if its subject matter becomes an issue in litigation or if clients communicate on behalf of corporations and business entities without these discussions being directly relevant to legal issues affecting those entities.
To maintain their attorney client privilege, corporations should clearly label written communications that require or receive legal advice, distinguish these conversations from responses to business concerns, and limit dissemination of privileged information only when necessary. Taking these simple steps can go far in protecting it in response to document requests.
Sullivan & Cromwell attorneys are skilled at understanding attorney client privilege, and can assist in determining if communications or documents fall under its protection. Contact us to schedule a consultation; the sooner our investigation begins, the faster we can provide legal advice and begin planning to successfully defend any suits or claims filed against you.
Limits to the Privilege
The attorney client privilege is an effective tool that enables clients to discuss sensitive matters with their lawyers without fear of reprisals, yet it must be understood how best to use this privilege in order to maximize its use. In order to do so effectively.
First and foremost, legal communication should only take place for purposes of seeking legal advice or opinions. Therefore, discussions about cases, transactions, or personal issues must take place with legal concerns at hand in mind.
The privilege only covers communications between a lawyer and their clients or potential clients, typically initial consultations, so they cannot disclose anything said during this stage of a relationship even if the lawyer ceases representing them later on. Therefore it is wise to contact any prospective lawyers beforehand in order to confirm if privilege applies before disclosing anything confidential to ensure its protection.
Finaly, privilege does not protect discussions between clients and attorneys regarding criminal or fraudulent activity; as it would not serve any client well to discuss how they might commit such activities or plan them. Furthermore, clients can forfeit this privilege if they disclose details from conversations they’ve had with an attorney to anyone outside their own attorney or staff members – including sharing that information internally between attorneys or staff members of both firms.
