Written By: Eric D. Dean
It is essential that when faced with a potential or actual dispute, an individual or entity understand the protection that may be afforded by the attorney client privilege as to pre-litigation communications. This protection, if properly instituted, allows for the protection of internal discussions to which the attorney is reasonably connected even before a lawsuit or arbitration is filed. This allows for pre-litigation internal planning and other communications where varying views and concerns can be aired and potentially damaging information disclosed internally without the risk of a forced disclosure to an adversary or such communication and information being subject to public purview and the media.
Having said the above, there are three (3) major caveats (a) the attorney must have some rationale nexus to the communication (i.e. the attorney cannot just be present at a meeting or copied on a memo so as to invoke the privilege (b) the communication cannot be for the purpose of planning a yet uncommitted crime (as opposed to discussions of a crime that already occurred) and (3) the communications must be maintained in the strictest confidence within the client organization to maintain its shield from production to an adversary or the outside world in general.
The Attorney-Client Privilege
The attorney-client privilege (“ACP”) protects only confidential communications between an attorney and a client in the course of the client seeking or the attorney rendering legal advice. The privilege covers both written and oral communications and protects both individual and institutional clients, and can arise in any setting in which an attorney is consulted in his or her professional capacity. The purpose underlying this privilege is to ensure that clients receive accurate and competent legal advice by encouraging full and open disclosure to their lawyer without fear that the information will be revealed to others. For a privilege to be established the attorney does not need to be paid or formally retained for the privilege to apply and may be an in-house counsel or in a consulting or advisory role. The attorney also need not render any actual advice for the privilege to apply. So, for example, the attorney may simply attend a Board meeting or be copied on an internal memo for informational purposes. In these circumstances it is largely one of intent on the part of the client as to the attorney’s role and the intention to maintain the communication in confidence.
Invocation & Destruction
The privilege is owned by the client not the attorney and cannot be waived by the attorney without the client’s consent. The attorney-client privilege attaches only when the attorney acts in his or her capacity as such. In other words, the privilege does not attach when the attorney is engaged in non-legal work such as rendering business or technical advice. For instance, if legal advice is only incidental to a discussion of business policy, the communication may not be protected. This is a very murky and ill- defined area. Courts will tend to find that the attorney client privilege exists unless the outside party seeking access to the communications establishes that the proper relationship was not established or that the communications was not made or maintained by the client in confidence.
As noted above, the privilege extends only to communications that the client intends to be confidential. Accordingly, communications made in a non-private setting, or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted or later disclosed to others, are not confidential and are not protected by the privilege.
Moreover, documents do not automatically become privileged merely because they are given to, or reviewed by, an attorney. Likewise, an existing non-privileged document forwarded to an attorney does not then become privileged. Along the same lines, general correspondence does not invoke the privilege’s protection because an attorney is listed among those receiving a copy or “blind” copy on a memorandum or an e-mail message. If the sender is actively seeking legal advice from the attorney, however, the ACP would likely be implicated.
It also should be emphasized that the protection afforded by the attorney- client privilege is intended to protect communications—not facts. A client cannot endeavor to conceal otherwise discoverable facts by relaying them to his or her attorney. The client has the right to refuse to disclose the discussions in which the attorney participated as counsel.
Tips to Maximize the Protection of the Attorney-Client Privilege
In order to preserve the attorney client privilege for sensitive communications, the following recommendations should be considered:
- Explicitly communicate and document that advice sought from counsel is of a legal nature and not solely of a business-related.
- Adopt and administer internal policies as to the involvement of counsel in stated kinds of internal communications and the maintenance of privileged communications in the same secure manner that other private documents are maintained.
- Mark or stamp documents that are confidential as such on the face of the document and limit access to such documents.
- Use technology with care to avoid inadvertent disclosure of protected information. For example, examine the potential recipient list before responding with a “reply all” to an e-mail message.
- Ensure that the communication is not shared with third persons who are not bound by a duty of confidentiality. Have any third party shown a confidential document acknowledge in writing his or her duty to maintain the document in confidence.
- Do not discuss or allow others in the organization to discuss privileged communications e.g., “We asked our attorneys and they told us . . . .” Such statements may waive the privilege.
Conclusion
It is often unpredictable and unforeseen that a loan or business transaction will result in litigation until after the litigation has been filed. By then, unless appropriate steps are taken, your adversary may have open access to all documentation regarding the dispute-even sensitive internal documentation. The use of the attorney client privilege, if implemented properly, is one of the few tools available to bar an adversaries access to sensitive internal communications and allow an open dialogue that might otherwise prove damaging in the hands of an adversary.