Protected Communication Between Attorneys and Clients
The attorney-client privilege protects communications between attorneys and their clients from disclosure to third parties, including to the clients’ adversaries in litigation. The privilege encourages full, frank, and confidential discussions between attorneys and their clients. However, the privilege can be waived – sometimes unintentionally – resulting in a simultaneous loss of protection.
The attorney-client privilege is waived when a client discloses the contents of a confidential communication or consents to its disclosure. The privilege can also be waived if people other than the attorney and client can hear or otherwise observe the communication. Some examples of actions that may result in waiving the attorney-client privilege include discussing confidential information in the presence of people who should not be part of the conversation, for example, in a multi-party phone call or email chain.
Once the attorney-client privilege is waived as to a certain communication between an attorney and a client, the privilege can no longer be claimed. Attorneys and clients, then, should take care to ensure the attorney-client privilege remains intact throughout the representation. Confidential communications should not occur in the presence of anyone other than the attorney.
Emails present a heightened risk of waiver, because of the speed and ease by which these communications are exchanged. When exchanging emails with an attorney, clients should use an account only they can access. Identifying that an email is intended to be confidential and privileged is beneficial as well. It is also advisable to log out of an email account after you exchange messages with your attorney. Clients should also ensure that their attorney (and only their attorney) is on the receiving end of a message. The opposing party, the opposing party’s attorney, and other third parties should never be included in a confidential email. Finally, once a confidential email has been sent to an attorney, clients should avoid discussing the message or its contents with anyone other than their attorney.
In conclusion, the attorney-client privilege stands as a vital safeguard, ensuring that candid and confidential communications between attorneys and their clients remain protected from disclosure to outside parties, especially adversaries in litigation. To preserve the sanctity of the attorney-client relationship, both attorneys and clients must exercise caution in their communication practices. By taking precautions, attorneys and clients can help maintain the integrity of the attorney-client privilege and foster an environment conducive to open and honest legal counsel.
