Attorney Client Privilege Refresh

Written by Daniel Royce

Edited by Bill Pfund

Ask any layperson about Attorney-Client privilege and they could probably recite a general explanation about how things you tell your lawyer are secret… the legal equivalent of “What happens in Vegas stays in Vegas”.  According to the Legal Information Institute at Cornell University Law School, Attorney-Client Privilege “refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.”  The privilege is asserted in the face of legal demand for communications, such as in a discovery request or a demand that counsel testify.  The privilege only exists when there is an attorney-client relationship.

The Attorney-Client privilege is a bedrock principle of American Jurisprudence and it is therefore critical to understand how the privilege attaches, and when Attorney-Client communications are not protected.  The Attorney-Client privilege is one of the oldest recognized privileges for confidential communications.  Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).  The privilege is intended to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.”  Id.  The Attorney-Client privilege is not absolute, and any competent attorney needs to understand its nuances.

The widely accepted test for application of the privilege is discussed in United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950), and states the privilege applies:

“[O]nly if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”

In accordance with the above test, the privilege is limited to communications from a client or prospective client seeking legal advice/opinion from a legal professional acting in his/her capacity as a legal professional.  Id.

“The privilege is that of the client alone, and no rule prohibits the latter from divulging his own secrets; and if the client has voluntarily waived the privilege, it cannot be insisted on to close the mouth of the attorney.” Hunt v. Blackburn, 128 U.S. 464, 470 (1888).  An attorney may not disclose any confidential communications without a client’s consent except under certain circumstances.  In other words, the privilege is that of the client, and the client is well within his/her rights to waive it, but if the client does waive, he/she can’t then expect counsel to continue to protect the privilege.

The privilege attaches to the subject of the communication and not the mere fact of employment of the attorney.  As a result, in certain circumstances, an attorney can be compelled to testify about the fact of employment (e.g. the attorney was retained by client on X date), the fact of providing legal advice on certain matters (e.g. the attorney provided legal advice on estate planning), and the fact that certain legal services were performed (e.g. the attorney drafted a will).  An attorney cannot be compelled however to testify to the subject of specific communications (as long as the privilege has attached).

Now we have addressed the basics of the privilege and how it attaches, it is perhaps more critical to address how the privilege may be waived.  There are obvious and not so obvious scenarios where waiver can occur, as outlined below:

1. There can be express disclosure of confidential communication (i.e. the client voluntarily discloses privileged or confidential information to a third party). It is important to note that voluntary disclosure to a third party may also apply to communications pertaining to the same subject matter.
2. A third party is present with the attorney and client when the communication is made. Do not bring unnecessary individuals into meetings/teleconferences/e-mails.  This is a quick an easy way to destroy the privilege.  Watch out for Zoom meetings with multiple individuals, teleconferences with numerous people on the line, and the cc and bcc features in your e-mail! Note: inadvertent disclosures may waive the privilege!
3. Virginia Rule of Professional Conduct 1.6 governs situations where an attorney must disclose otherwise privileged communications.
   1. First and most importantly, the Rule states that a lawyer, “shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation” and for the specific exceptions set forth in the rule. These exceptions include but are not limited to:

A lawyer may reveal communications if…

1. The lawyer reasonably believes it is necessary to comply with law or court order
2. The information establishes a claim or defense on behalf of the lawyer in a controversy between lawyer and client or to establish a defense to a criminal charge or civil claim against the lawyer based on conduct of the client.
3. The information clearly establishes that the client has perpetrated a fraud upon a third party related to the subject of the representation.
4. The information is reasonably necessary to protect a client’s interests in the event of the representing lawyer’s death, disability, incapacity or incompetence.
5. Information to prevent reasonably certain death or substantial bodily harm.

A lawyer shall reveal communications if…

1. The intention of a client to commit a crime reasonably certain to result in death or substantial bodily harm or result in substantial injury to financial interests or property of another. If possible, the attorney should advise of the consequences, urge them not to commit the crime and advise that counsel must reveal the client’s criminal intentions.
2. Information concerning misconduct of another attorney to the appropriate regulatory/professional authority.

The attorney-client privilege is fundamental to the practice of law, and while it is not overly complex, there are pitfalls to avoid.   You can trust KPM to be knowledgeable in all areas of the law, and to continue to keep you updated and educated on legal issues which can or will significantly impact our clients. Please don’t hesitate to reach out to us with questions, concerns, or assistance with any of your needs.