Mountain Law: Understanding the attorney-client privilege
The policy behind the attorney-client privilege is to promote candid and open communication by clients to their attorneys without fear of disclosure. The attorney-client privilege only applies if the following conditions are met: (1) there is an attorney-client relationship; (2) there is a qualifying “communication”; (3) the client intended the communication to be confidential; and (4) no exceptions apply that defeat the privilege. Each of these conditions is discussed below.
Attorney Client Relationship: The attorney-client privilege only applies when a client confers with an attorney for the purpose of obtaining legal advice. The privilege does not apply in other contexts such as if the attorney is acting as a business advisor, investigator, golf buddy or fellow board member. The privilege applies to a person who contacts an attorney “in the course of seeking legal advice” even if the person ultimately does not hire the attorney. The privilege applies to legal entities such as corporations, in which case the privilege generally extends to all employees of the entity (not just management) when they communicate with the entity’s legal counsel. The privilege extends to communications given to an attorney’s staff. If two defendants hire the same attorney to conduct a joint defense, neither client can be compelled to testify about matters learned in consultation with the lawyer and the other client.
Communication: The attorney client-privilege only applies to communications and not underlying facts. For example, a client cannot be compelled to answer the question “What did you say to your attorney about X?” but can be compelled to answer the question “What do you know about X?” A client cannot give an attorney an item for safekeeping and then assert client-attorney privilege to protect disclosure of the item because the item is not a communication. The privilege does not extend to documents that preexist an attorney-client relationship such as a contract.
Confidential: The attorney-client privilege only applies to confidential communications, which are communications made with an expectation of privacy. The privilege could be waived if the client does not take reasonable steps to prevent another person from eavesdropping, overhearing, or otherwise receiving the communication. The privilege is not waived with respect to a statement made by a child in the presence of a parent. The privilege could be waived if the communication is made directly to, or in the presence of, a third party who is not a client. This would theoretically include a friend invited to a meeting with the client’s attorney. There is no clear rule on whether the privilege is waived where a client’s spouse is present at an attorney-client meeting or if a communication is inadvertently disclosed, such as if an e-mail is sent to the wrong address.
Exceptions: The attorney-client privilege is subject to certain exceptions. One primary exception is the “crime-fraud” exception, which holds that communications between attorney and client are not privileged if they are made to permit the client to continue or plan a crime or fraud. The crime-fraud exception applies only if the client knows or should know that the advice is sought for a wrongful purpose, not if a client consults an attorney in good faith because the client is unsure about the legality of a proposed course of action.
Another primary exception – the “testamentary exception” – holds that an attorney is permitted to reveal certain communications in connection with the will of a deceased client. Disclosure is permitted in this circumstance because the attorney is often in the best position to provide evidence about the creation of the will.
Clients who seek legal advice should be aware of the applicability of the attorney-client privilege and its various exceptions. Precautions should be taken where needed to preserve the privilege.
Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County emphasizing real estate and commercial law. He may be reached at (970)468-4953 or Noah@TheKlugLawFirm.com.
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