YourABA: December 2013
YourABA December 2013 Masthead

A refresher on attorney-client privilege

The attorney-client privilege is the backbone of the legal profession. "It encourages the client to be open and honest with his or her attorney without fear that others will be able to pry into those conversations," Jackie K. Unger, an associate at Seattle's Carney Badley Spellman PS, wrote in a recent issue of Business Law Today. "Further, being fully informed by the client enables the attorney to provide the best legal advice."

The privilege is at play daily, whether litigated in court or serving as a background consideration in how best to advise clients while maintaining confidences, Unger said. Even in business transactions, it is critical to maintain the privilege, as unseen conflicts may result in future litigation where attorney-client communications become of interest to an opponent.

Yet the privilege's many nuances easily result in loss of the privilege when an attorney does not pay close attention to the details of the communication, Unger said. Because it is easy to overlook these nuances, Unger outlined the fundamental requirements of the privilege.

Privilege only protects legal advice

To invoke the attorney-client privilege, the proponent must establish a communication between attorney and client in which legal advice was sought or rendered, and which was intended to be and was, in fact, kept confidential, Unger said. While both communications from client to attorney and from attorney to client are protected, the privilege protects only the fact that information was communicated and does not preclude disclosure of the underlying facts conveyed in those communications.

This means a client can never protect facts simply by incorporating them into a communication with the attorney, Unger said. For instance, a client might provide his attorney with details of transactions with another business over the past 10 years, including dates and costs, to help the attorney draft a new contract with the business. In future litigation, the client would not have to answer any questions about what was said to the attorney or what language the attorney recommended, but the client could not refuse to give the date of a prior transaction simply because that fact was discussed with the attorney.

"Communications will only be privileged if the party sought, and the attorney rendered, legal advice," Unger said. "Because the privilege is contrary to the judicial goal of bringing relevant evidence to light, it is construed narrowly and protects only those disclosures necessary to obtain informed legal advice that might not have been made absent the privilege."

For attorneys who may counsel their clients on business matters as well as legal matters, this requirement is not always easy to meet, she said. If the work could have been performed by an individual with no legal training, the attorney has not been consulted in a professional capacity.

The privilege will not apply where information is shared between attorney and client without any request for legal counsel, Unger said. Technical drawings forwarded to an attorney have been found to retain their nonprivileged status in patent litigation, as have emails between a company's executives related to business decisions that copy but do not solicit advice from in-house counsel.

However, where the client seeks legal advice that by its nature relates to business concerns, the privilege still applies, Unger said.

These principles highlight the need for attorneys to be aware of the role they play — the privilege may exist in one conversation as legal adviser and disappear in the next, when business advice is sought, Unger said. "To ensure privilege is maintained, the attorney should try to keep the roles from overlapping by offering legal advice and business advice separately when possible, be clear when legal advice is being rendered, and make sure the client understands that simply forwarding confidential information to the attorney does not make it privileged," she said.

The communication must be confidential

To be privileged, the communications must also reasonably be intended as confidential. This means that they must not be shared with any third party, Unger said. However, with a corporate client, the attorney's discussions with an employee may generally be shared with other nonattorney employees where information is sought at the attorney's direction or the attorney's legal advice is relayed. A party's assertions that the communications were intended to be confidential will not satisfy the burden; the court will look to the circumstances to determine the intent, Unger said.

One important exception to this strict confidentiality requirement is the "common interest" doctrine. The doctrine, an extension of the attorney-client privilege, Unger explained, applies where 1) a communication is made to a third party who shares a common legal interest, 2) the communications are made in furtherance of that legal interest and 3) the privilege is not otherwise waived.

While there must be some shared interest, courts disagree as to the commonality required to assert the privilege, Unger said. Some courts require that the parties have identical interests in order for the doctrine to apply. Other courts apply the common interest doctrine even after acknowledging the parties may have adverse interests in substantial respects. In any event, the shared interest must be a legal interest, not simply a commercial interest, and the parties must cooperate to further a joint legal strategy.

Finally, because the common interest doctrine is merely an extension of the attorney-client privilege rather than an independent privilege and because the attorney-client privilege logically requires a communication between the attorney and client, Unger said, some courts hold that the common interest doctrine does not apply to communications between two parties when an attorney is not also involved.

Privileged information should be disseminated as little as possible, even by employees within the same company, she said. "Clients who seek to share information with consultants, advisers or other businesses should be informed that doing so will likely waive any privilege as to that information unless it enables them to pursue a joint legal strategy," Unger said. "Further, the client should be warned against disclosing privileged information to third parties when no attorney is present."

Business Law Today is a publication of the American Bar Association Business Law Section.

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