Have You: Thought Through Attorney-Client Privilege?
Attorney-client privilege, a fickle concept that can allude both laymen and attorneys alike. But it’s an important one, and the more organizations I speak with the more I realize how many misunderstand it.
In fact, I can’t count how many people attempt to confide in me under the auspices that whatever they disclose has to be kept privileged. But much like gas at a $1.50 a gallon, this is simply a myth. So too is the notion that copying an attorney in on emails sent automatically creates a privilege shield.
The issue is compounded by the fact that privilege is almost always framed as an “attorney problem”; something left up to the lawyers to understand and navigate. Which is partially true. But I would also argue that it is incumbent for the clients (i.e. you) to have a basic understanding of how privilege works as well, particularly since it is ultimately your hides on the line.
Because privilege can be super complicated, and can change from state to state, I won’t go too much into the weeds but would suggest that when seeking legal counsel you ask for a quick primer on how all this works.What follows is more of a brief look, from 40K feet, into what privilege is and why it matters for you.
What Is Attorney-Client Privilege?
Many organizations I talk with know of and refer to “privilege” but don’t really know what it is or what it does.
Attorney-client privilege is essentially where a client, subject to some exceptions, may refuse or prevent disclosure of confidential communications made to an attorney PROVIDED they were made for the purpose of the client seeking or obtaining legal services.
Really the best way to understand it is to break it down. Attorney-Client privilege is:
- A communication (spoken, written, notes, etc)
- Made between people covered by the privilege (i.e. an attorney and its client)
- that is meant to be kept confidential
- made or disclosed for the purposes of seeking, obtaining or providing legal assistance.
Though there are a few exceptions, privilege is held by the client so only the client may waive it; allowing for privileged communications to be disclosed. This ability to choose when to withhold certain pieces of information is what makes privilege so tremendously important (and powerful) both before and during litigation.
Admittedly, this may not seem all that important for the day to day operations but, as you’ll see later, privilege comes into play well before trial and can be lost before its usefulness is realized. Lastly, privilege is lost once the communication is no longer confidential, a common example being the client’s accidental disclosure of the communication to a third party.
Confidentiality v. Attorney-Client Privilege
Most people generally confuse attorney-client privilege with the principle of confidentiality.
Ancillary to the attorney-client privilege attorneys also have an obligation to keep a client’s confidential information confidential. In Texas, this obligation is broad in that it covers both privileged and unprivileged information.
Note that with the attorney-client privilege, though the privilege is ultimately held by the client an attorney MUST disclose privileged information in a few limited circumstances. Conversely, with confidentiality an attorney MAY disclose confidential information in a few instances with or without the permission of the client; including if the attorney believes it’s in the best interests of representing the client. But both ultimately seek to protect communications made in seeking, receiving and giving legal representation.
What is important to remember is that information doesn’t have to be privileged in order to be held confidential, but all privileged information does have be confidential to also be privileged. And much like attorney-client privilege, information will lose its confidential protection if disclosed to a third party.
Why Does All This Matter?
So to the important part. Why does all this even matter?
No organization sits wishing to end up in court. But where it happens, every little bit helps. And the best way to ensure you have all your “defenses” lined up (including privilege and confidentiality) is to beef up your offense early on (please forgive my Madden-esqe reference but it’s true). That means creating an environment where not only are protections put into place but:
- Not taking the “transparency” culture too far by ensuring that those who need to know about a sensitive matter are the only ones in the know;
- Thinking about confidentiality and privilege when developing a document retention program or re-thinking document access; or
- Training employees to think about confidentiality in their day to day by doing things such as scanning documents for confidential information before posting or exercising discretion when forwarding emails (a perfect example of why this is important is this recent report finding that 1 in 5 nonprofits were leaving the social security numbers of some donors on public tax documents)
can all help to ensure that organizations don’t mistakenly lose confidentiality or the attorney-client privilege when, or if, the time comes where it’s needed. In fact, by stressing the importance of confidentiality on the front end you not only ensure that you keep your defenses in play but also avoid some of the other problems that can tend to plague organizations such as the loss of a donor relationship behind lose lips or mis-handling information.
Some other things organizations will want to keep in mind:
- Realize that even confidential and/or privileged documents might see the light of day; whether it be someone else within the organization, opposing counsel or the judge. Consequently, none of this is an excuse not to use a little “discretion.” In other words, not everything that can be written should be. Be careful with what is put in emails and text messages. At the end of the day, you and your employees should be thinking “Do I want this on the record?” as that’s effectively what you’re doing; creating a record. If the answer is no then there is this little convention that, I believe, still exists called a phone call. Use it!
- Do a little due diligence on attorneys you hire. States like Texas have a website where individuals can look an attorney up to see if their license to practice is current. Make sure it is. If it isn’t then attorney-client privilege may not attach to your communications.
- Be careful with what I call the “Oh so you’re an attorney” questions. These often come up at holiday parties or in the grocery line where someone finds out I’m an attorney and has “a quick question.” Many cases have found that in order for privilege to attach there must be some type of relationship or attempt to establish one between the client(s) and attorney.
For a little more clarification on the subject matter I thought SMU’s webpage was also pretty helpful.
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