A Quick Primer on the Attorney-Client Privilege Nov 10, 2015
photo courtesy of Matt Santomarco (www.santomarco.com)
A Quick Primer on The Attorney Client Privilege
There is often some confusion as to what the attorney-client privilege actually is and what protections it offers. It is often compared to the doctor/patient or accountant/client confidentiality obligations, and while similar, its protections and waiver are quite different. The attorney-client privilege is a law that protects communications between attorneys and their clients and keeps those communications confidential.
The attorney-client privilege is the oldest privilege for confidential information recognized at common law. This privilege encourages openness and honesty between attorneys and their clients because attorneys cannot reveal (and indeed cannot be forced to reveal) attorney-client communications relating to legal advice. Those communications, as long as they privilege isn’t waived, remain entirely confidential between the client and attorney. The privilege belongs to the client.
The privilege attaches not only to individuals but also to corporations. The attorney-client privilege creates a protection of privacy so that a company’s personnel can candidly inform the attorney of all the facts in a confidential and privileged setting. Of course, as an innate entity, a corporation must act through its agents; it cannot speak directly to its lawyers, and similarly, it cannot directly waive the attorney client privilege. The power to waive the corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors; however, it belongs to the company and not to any of its individual officers or directors. When control of a corporation passes to new management, the authority to assert and waive the corporation’s privilege passes as well.
Although the attorney-client privilege provides insurmountable protection when applied correctly, it is narrowly construed and extremely fragile. Communications must be kept confidential for the privilege to apply. If the information of attorney-client communications is disclosed to persons outside the company or even to persons within the company who are not directly involved in the matter, the privilege may be compromised. If the client (company) recounts counsel’s advice to anyone who has no role in the case, the client’s earlier discussion with counsel is no longer privileged. As a result, if the client’s agent is called to testify in the case, he/she can be compelled to describe the conversation with counsel.
Waivers of the attorney-client privilege come into play most frequently in litigation and it is in litigation that such waivers can be the most dangerous to a company. Once waived, even inadvertently through improper protocols or procedures, you can’t get it back and the company may be required to reveal confidential attorney discussions, findings, and strategies with the opposing party. If a company is careless or simply uniformed about the attorney client privilege it can be disastrous.
A corporation has the opportunity every day to train its employees to be cognizant of and cautiously guard confidential information and to protect the attorney-client privilege. Even sharing privileged communication too widely inside the corporation can waive the privilege. The privilege can be waived either intentionally or accidentally, for this reason it is important to train employees on how to handle confidential information from its attorneys. Below is a very general protocol a company should consider to protect and maintain its attorney-client privilege.
General protocol:
- Do not discuss your communications/discussions with the company’s attorneys with anyone outside the company.
- Never distribute written communications—including e-mails, drafts of documents with comments, reports, opinions or documentation—from the company attorneys to anyone outside of company.
- Never send, e-mail, discuss or distribute draft contracts with the company attorneys’ comments on them outside of the corporation.
- Do not allow third parties to be present during conference calls, meetings or discussions with the company’s attorneys.
- Within the company, limit your discussions about attorney-client communications to those who have a clear need to know that is directly related to the solicitation or delivery of legal advice. The same applies to the sharing of written communications—including e-mails—from attorneys. E-mails from the company’s attorneys should never be forwarded or otherwise distributed without prior discussion with the attorneys.
(Mallon Lonnquist Morris & Watrous, PLLC, is a business, real estate, finance, and litigation law firm. Craig Watrous is a Colorado business lawyer with Mallon Lonnquist Morris & Watrous, PLLC, based in Denver, Colorado. Craig regularly represents corporations. Craig can be reached at cwatrous@mlmw-law.com.)