Attorney-client privilege is a legal principle that protects communications between a client and their lawyer from being disclosed without the client’s consent.
This privilege applies to both oral and written communications, and applies in a variety of legal contexts, including criminal cases, civil litigation, and regulatory investigations. It is intended to encourage clients to make full and frank disclosures to their attorneys so that the attorneys can provide effective legal representation.
The attorney–client privilege is one of the oldest privileges for confidential communications.
What’s Covered Under Attorney Client Privilege?
The attorney-client privilege in the United States is often defined by reference to the 5 Cs: a Communication made in Confidence between a Client and Counsel for the purpose of seeking or providing legal Counsel or advice.
The attorney-client privilege may apply to any and all communications or exchanges between an attorney and a client. Documentary communications like emails, letters, and even text messages may fall under this category.
The communication needs to be kept private. This indicates that only the client and the attorney can communicate with one another. The privilege is forfeited if the communication is received by someone other than the attorney-client relationship, such as a close friend who receives a copy of an email sent to the lawyer. The privilege is forfeited even if the communication is made in confidence. Waiving the privilege is the term for this.
The client must initiate the communication. It is not required to have a formal retainer agreement. It is sufficient for the individual to have the sincere belief that he or she is consulting the lawyer to obtain legal counsel to advance one’s own interests. A company can also be a “client.” As long as the communications are within the scope of the employee’s duties, the privilege safeguards communications between the company’s lawyer and employees, regardless of whether the lawyer is an “in-house” lawyer employed by the company, such as a general counsel, or “outside” counsel at a law firm.
The client must communicate with counsel, which is a lawyer. A client’s communications with people who help the lawyer with the representation, like a paralegal or an investigator, are also protected by the privilege.
For the purpose of seeking or providing legal counsel, communications are required. This indicates that when a lawyer provides business advice, their communications are not protected in the corporate setting.
Certain requirements must be met for communication. Communication (for example, via email, written correspondence, orally) will only be privileged if the subject communication satisfies certain requirements and is confidential (i.e., not shared with third parties who are not clients or attorneys).
The “primary purpose” of the communication must be to seek or provide legal advice for the privilege to apply to the communication itself. To put it another way, a communication is not privileged if it: 1) make a request for legal counsel or (2) provide information that is reasonably related to a request for legal aid. It is not privileged to have a conversation or email exchange with an attorney with others present or involved.
Exceptions to the Attorney-Client Privilege
The following are some of the most typical exceptions to the privilege:
A client’s passing. If a dispute arises between the decedent’s heirs, legatees, or other parties claiming under the deceased client, the privilege may be violated upon the decedent’s death.
Fiduciary Duty. The right of a corporation to assert the attorney-client privilege is not unconditional. When shareholders of the corporation wish to breach the corporation’s attorney-client privilege, an exception to the privilege has been created.
Crime or Fraud Exception. The communication is not privileged if a client seeks advice from an attorney to help with the advancement of a crime or fraud or the post-commission concealment of the crime or fraud. However, unless the client considers covering up the crime or fraud, communications are privileged if the client has committed a crime or fraud and then seeks legal counsel.
Common Interest Exception. If two parties are represented by the same attorney in a single legal matter, neither client can use the attorney-client privilege to sue the other in any subsequent litigation if the subject matter of the previous joint representation was involved.