The attorney-client privilege is key to courtroom proceedings. Without it, lawyers would not be able to effectively represent their clients. With attorney-client privileges, lawyers and their clients can confidently discuss the details of a legal case without fear of repercussion. Understanding the full scope of these privileges is critical to providing legal service.
When the Attorney-Client Privilege Can Be Invoked
In a 1975 opinion, a district court judge wrote that “at the base of the attorney-client privilege lies the policy that one who seeks advice or aid from a lawyer should be completely free of any fear that his secrets will be uncovered.” This quote succinctly explains the attorney-client privilege, which can be invoked when:
- The client prefers their communications with a lawyer that they’ve hired to be private
- A lawyer is communicating with a client regarding legal advice or an ongoing case
- An attorney-client relationship exists
The attorney-client privilege exists to promote better legal advice. When a client is sure their statements to an attorney cannot be used as evidence, they’re more likely to be frank and open. Full transparency benefits the attorney by providing them with a complete picture of a case.
This privilege applies whenever an attorney-client relationship exists, meaning the area of law is usually irrelevant. Clients involved in personal injury, administrative, and criminal cases all benefit from the attorney-client privilege at any stage, whether it occurs during pre-trial, mid-trial, or post-trial.
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What Is an Attorney-Client Relationship?
At first glance, the definition of an attorney-client relationship appears obvious. However, it’s easy to assume such a relationship exists when it doesn’t. Presumption doesn’t instantly conjure up attorney-client privileges.
For these privileges to exist, it must be clear both parties have agreed that the attorney will represent the client. This agreement can take many forms, including:
- The submission of a fee contract
- An explicit oral agreement
- An attorney filing court documentation for a client
- An engagement letter
Courtrooms are all about debate, a rule that extends to the existence of an attorney-client relationship. Therefore, it’s important that the client and the attorney clearly establish a relationship before exchanging private information. Being intentional can avoid unnecessary case complications.
When the Attorney-Client Privilege Doesn’t Apply
There are a few circumstances where previously established attorney-client privilege may not apply. These include:
- Intent to commit a future crime: If a client has committed a crime and is facing a criminal charge, their communications with an attorney are under privilege. However, they lose their attorney-client privilege if they discuss plans for a future crime.
- The privilege is waived: Ultimately, clients are the arbiter of the attorney-client privilege, meaning they’re permitted to waive this privilege when they see fit. This applies to corporate cases, too, when a company is taken over by new leadership. In this example, the attorney-client privilege could be passed on to the new leaders of the company.
- A client’s death: When a client dies, they may lose their attorney-client privilege. This specifically applies to cases involving estate disputes between heirs.
- Third-party involvement: If a third party witnesses or participates in attorney-client communications, these communications usually lose their privileged status. This is of particular concern with email chains. If a client chooses to cc (carbon copy) someone outside of the attorney-client relationship, they could nullify privacy privileges. However, if the third party is assisting the lawyer or client, like a paralegal or co-counsel member, the privileged status of the conversation will be retained.
- Fiduciary duties: Attorney-client privileges are not absolute in cases involving shareholders. Shareholder interest can act as an exception to these privileges.
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Does the Attorney-Client Privilege Apply to Corporations?
Historically, the attorney-client privilege only applied to high-level corporation members seeking legal advice or counsel. This precedent was known as the “control group” test. However, several key legal decisions indicate that the “subject matter test” will apply more readily in modern cases.
The “subject matter test” allows attorney-client privilege to protect any member of a corporation if:
- They were seeking legal advice
- Their superior requested that they seek legal advice
- The employee was carrying out orders from a superior
- The employee was operating within the scope of their corporate duties
- The conversation was disseminated beyond those involved in seeking legal advice
The question of which members of a corporation receive legal privileges is only one part of the puzzle. Corporations often hire lawyers for a multitude of reasons. These reasons can be split into two categories, economic advice, and legal advice. Notably, the attorney-client privilege does not typically cover communications involving economic advice.
However, the problem is that communication between attorneys and corporations often contains both economic advice and legal advice. Here, a court will typically examine intent. Was the corporation initially contacting an attorney for advice regarding a merger? Or was it about upcoming legal representation? A corporation cannot simply send all its sensitive information to an attorney in the hopes that it automatically becomes privileged.
Discussions of what’s privileged and what isn’t in a corporate context are debatable. There are no hard and fast rules, meaning the outcome of a privilege decision could depend on the judge overseeing a case. Therefore, the main recommendation for attorneys is this—be rigorous and intentional about your communications with corporate clients. The more apparent that your communications entailed legal advice, the better.
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Attorney-Client Privilege Best Practices
The American Bar Association (ABA) lists a series of best practice measures to protect attorney-client communications:
- Be wary of written communications
- Keep business discussions separate from legal discussions
- Ensure clients understand what waives attorney-client privileges
- Clearly establish an attorney-client relationship
- Only include third parties in legal discussions when necessary
Take extra care when relying on email communications. An attorney should not send emails to a client’s place of business (provided the client isn’t an entity), and they should ensure the client isn’t using a shared email address. Similarly, be careful of responding to email chains, as it may not be apparent who’s included in the chain. Above all, whenever you send an email, ask yourself, “Will sending this email jeopardize attorney-client privileges?”
Modern Communications and Attorney-Client Privileges
Email is only the tip of the iceberg in maintaining confidentiality during attorney-client communications. This is especially true in our modern world, which involves texting, video conferences, and phone calls. All these communication methods, while often beneficial, present a distinct security risk.
Text Communications
Many Americans use mobile phones as their primary phone. Some may use an iPhone or another digital device for texting that employs end-to-end encryption. According to IBM, this privacy measure prevents third parties from accessing text communications by scrambling access keys.
By barring third-party access, users can reduce the risk of accidentally losing attorney-client privileges. Therefore, text software that relies on end-to-end encryption can effectively protect digital communications. Keep in mind that you and your client must use the same text software for end-to-end encryption to engage.
Further tips for secure text communications include:
- Always discuss text messaging policies with clients beforehand
- Text messaging creates a permanent record – refrain from discussing privileged information with clients over text
- Don’t hesitate to schedule an in-person meeting if a client asks a complicated question
Video calls
The story of the pandemic was mostly about problems like supply chain issues or inflation. However, shelter-in-place orders also expedited the proliferation of remote work tools. These days, it’s easier than ever to hop on a video call to discuss a case face-to-face with a client than ever before. But are these video calls secure?
Zoom, a widely used video call software, uses similar end-to-encryption tech as iMessage, which provides protection from third parties. So, at face value, if you use software like Zoom, your communications will be secure. Other considerations include:
- Keeping your video meetings password protected: Without password protections, a third party could access your meeting. Similarly, most commercially available video call software allows you to bar those you’re speaking with from adding additional people to the call – use the tool to further safeguard your conversation.
- Being cautious about recording and saving calls: The record call feature should be approached with caution. For example, Zoom’s terms of service state that “by using the Services [recording tools], you are giving Zoom consent to store recordings for any or all Zoom meetings or webinars that you join.” Storing client conversations on a third-party server presents a threat to attorney-client confidentiality.
- Using headphones: This might sound obvious but use headphones and instruct your client to do the same. You never know who might be eavesdropping on a conversation.
Attorney-Client Privileges and Inadvertent Disclosures
In the past, legal documentation was physical, contained in endless boxes of files, images, and statements. These days, much of this documentation is digital, known as electronically stored information (ESI). While a boon in many ways, the rise of ESI makes it easier to accidentally send privileged information to the opposing legal team during discovery.
Legal Protections for Inadvertent Disclosures
There are two subsections to the Federal Rule of Evidence 502 that are relevant to inadvertent disclosures, subsection (b) and subsection (d). Subsection (b) provides that inadvertent disclosures cannot be used as evidence if:
- “The disclosure is inadvertent”
- “The holder of the privilege or protection took reasonable steps to prevent disclosure; and”
- “The holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 l(b)(5)(B).”
Subsection (d) allows the relevant court to decide if the evidence contained in an inadvertent disclosure results in a privilege waiver or not.
Generally, these federal rules protect against inadvertent disclosures wreaking havoc on a case. They protect lawyers from this type of mistake and can issue penalties if the party that received an inadvertent disclosure tries to take advantage of this error. However, there are instances where inadvertent disclosures have created problems for those that slipped up.
Case Study: Alex Jones Defamation Case
In 2018, the parents of children killed in the Sandy Hook Massacre sued media personality Alex Jones for defamation, as The Texas Tribune reports. The lawsuit was predicated on the fact that Jones claimed on his popular show Infowars that the massacre hadn’t taken place and was staged by political actors, which led to the Sandy Hook parents receiving threats.
During the 2022 trial proceedings, Jones’s lawyer unintentionally submitted the entirety of Jones’s text message history to the opposing legal team.
In Texas, where the trial took place, there are “snapback” laws that function alongside Federal Rules related to inadvertent disclosures. Texas’ “snapback” law allows lawyers 10 days to reassert privilege over the information contained in an advertent disclosure. However, Jones’ lawyer failed to take advantage of this “snapback” law, meaning the disclosed phone information was ultimately used against Jones.
This example teaches lawyers a few important lessons:
- Know the “clawback” and “snapback” laws relevant to the jurisdiction you’re working in.
- Understand the court system you’re working in; some courts are less lenient than others about inadvertent disclosures.
- Always exert energy to avoid inadvertent disclosure – doing so could benefit you under Federal 502 Subsection (b).
- If an inadvertent disclosure occurs, don’t fret – instead, work quickly to fix it.
Discovery and Attorney-Client Privileges Vary From Court-to-Court
Inadvertent disclosures are the greatest risk associated with e-discovery, as made readily clear by the Jones defamation case. The other precedent established in the Jones case that inadvertent disclosures can be rectified if attorneys act quickly is not a given, though.
Courts throughout the United States vary in their handling of inadvertent disclosures during e-discovery. In “The Attorney-Client Privilege And Discovery Of Electronically Stored Information,” Adjoa Linzy, a graduate of Duke University of Law and current employee of the U.S Department of Treasury, writes that:
“Courts are not consistent in finding waiver of attorney-client privilege. While some courts find automatic waiver, others adhere to the “no waiver rule,” holding that the attorney-client privilege can never be waived in e-discovery through inadvertent disclosure of privileged documents.”
This, of course, directly contradicts much of the information in the previous section. What about Federal Rule of Evidence 502? What about “snapback” and “clawback” laws?
Ultimately, it depends. Linzy writes that there are three dominant legal schools of thought regarding inadvertent e-discovery disclosures:
- Jurisdictions where inadvertent disclosures automatically waive attorney-client privileges
- Jurisdictions where inadvertent disclosures never waive attorney-client privileges
- Jurisdictions that fall somewhere in the middle of the spectrum
This analysis of attorney-client privileges provides a key takeaway that applies to most of the information contained in this article:
- Know exactly which jurisdictional laws apply to your case
- Know which judge will be presiding over your case, and
- Know the legal history of the jurisdiction you’re working in
Taking these precautions could prevent a disastrous inadvertent disclosure and ensure you maintain one of the most important parts of a case – attorney-client privileges.
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