Double-Secret Probation and the Attorney-Client Privilege

Everybody knows about the attorney-client privilege.  But most people don't know that it isn't automatic, and it isn't unconditional.

Everybody knows about the attorney-client privilege.  But most people don't know that it isn't automatic, and it isn't unconditional.

Attorney-Client Privilege?  Yeah, I know what that is.

Along with the First Amendment, the Attorney-Client Privilege is probably the legal doctrine that I hear misquoted and misunderstood more than anything else.  There's a widespread belief, it seems, that just telling something to a lawyer makes it confidential.

You mean that isn't true?

Unfortunately, no!  While the Attorney-Client Privilege does trump nearly every other ethical requirement that we lawyers are subject to, there are a number of elements that have to be satisfied in order for the Privilege to apply.  If even one of those elements isn't met, then the Privilege is not implicated, and the contents of the communication could be deemed non-confidential.  As you can probably imagine, that can have catastrophic effects for a client's case.

Oh, snap!  So what are the requirements?

First, the attorney-client relationship has to exist at the time the communication is made.  If you haven't hired your attorney yet, for instance, like if you're in your initial consultation or writing an introductory email, you need to be cognizant of how much information you're volunteering.  This can be a tough balance to strike; your attorney needs as much information as possible in order to determine whether he or she can help you, but you still need to be really careful with any information that you want to keep a secret.

Second, the communication must be made in confidence.  This means that you're in a closed room with only yourself and your attorney, and you intend for the communication to remain secret.  If you're talking to your attorney on speakerphone on a crowded subway, no Privilege.  If you're sitting in the conference room with your neighbor who drove you to the attorney's office, no Privilege.  There are exceptions where a minor child's parent is present, where the client's spouse is present (remembering that spousal privilege only applies if the couple is married at the time of the communication), or where the lawyer's staff is present.  However, it's important to remember that generally, you want the communication to be made in private between you and your lawyer.  If I'm in a situation where a prospective client has brought a neighbor, friend, or coworker to the consultation, I'll normally talk to the client alone first, explain the Privilege to them, and allow the client to make an informed decision as to whether or not the third party will be present for the consultation.

Third, the communication must be within the scope of the representation.  If you're talking about your business dealings to the attorney handling your speeding ticket, that's not going to be privileged.  If you're talking about medical bills to your personal injury attorney, then that is going to be privileged.  Pretty straightforward, right?

Fourth, the communications must pertain to the seeking - or giving - of legal advice for a proper purpose.  This is super important.  Information doesn't become privileged just because you convey it to your attorney.  If you send a letter full of sensitive information to your business partner and carbon-copy your attorney, that by itself does not make the letter a privileged communication.  If you're spitballing with your lawyer about whether to send the letter, different story.  Make sense?  Also, remember that you have to have a proper purpose.  If you're talking to your lawyer about lying on your taxes, that's going to be an improper purpose and the Privilege will not apply.

Fifth, you as the client must avoid waiving the privilege.  This is the most important factor of all, and it's really the entire reason I'm writing this article.  Even if the first four elements are met, the entire Privilege can be dissolved if you're careless about who you share the privileged information with.  Keep in mind that there's a spousal privilege, so communicating privileged information to your spouse is generally going to keep the Privilege intact.  But if you're talking about your case to a neighbor, a friend, or a coworker, you can compromise the Privilege or even eliminate it entirely.  Even if you only divulge a little bit of privileged information, there's established case law dictating that the entire Privilege can be waived.

So what does this all mean?

The point here is that you have to be very careful not to divulge privileged information to anybody unless you absolutely have to.  If you lose any part of the Privilege, you can lose the whole thing fairly easily.  That can have disastrous ramifications for your claim, and it could easily become the difference between recovering and walking away empty-handed.