April 01, 2014

Privilege: The Zone of Confidentiality Expanded

Edna Selan Epstein

Do you want your communication with a client seeking legal advice to be protected by privilege in discovery? The communication must be confidential when made and be kept confidential thereafter. Does that mean it can be conveyed to no one other than client and attorney? Of course not. Lawyers these days need an army of “others” to provide legal advice to their clients. So let’s say that the communication must remain within a zone of confidentiality.

Lawyers have always been able to share privileged communications with secretaries, paralegals, and other lawyers in their firms. Clients have always been able to share the communication with those within the business who have a “need to know.”

That zone of permissible confidentiality, until recently, did not encompass individuals not directly in the employ of the lawyer or of the client. Economic realities evolve. Increasingly, companies and even lawyers have come to employ “contract” employees who are not on the direct payroll of either the client or the lawyer.

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