The attorney-client privilege is the oldest privilege for confidential information recognized at common law.  Nevertheless, the attorney-client privilege is not unlike the testimonial privilege which has been extended to other professions including physicians, and clergy.  The privilege is intended to encourage full and frank communication between the client, patient, or penitent, and the professional.

The attorney-client privilege recognizes that sound legal advice depends on the lawyers being fully informed by the client.  The purpose of this privilege is both to encourage a client to provide all relevant information to the attorney, and to protect advice given during the course of the attorney-client relationship.  Were it otherwise the client would be reluctant to confide in legal counsel.  "[T]he reason for the privilege is not to protect the client, but to encourage free exchange of information between the attorney and client and to promote the administration of justice.  Neither the client nor the attorney can be compelled to disclose these communications against the client’s wishes.” [State vs. Holsinger, 601 P.2d 1054, 1058 (1979).]

The elements required to establish the attorney-client privilege are as follows: (1) a communication, (2) made between privileged persons; (3) in confidence; and (4) for the purpose of seeking, obtaining, or providing legal assistance to the client.  Additionally, the “privilege must be affirmatively raised and cannot have been waived.” [Edna S. Epstein, The Attorney-Client Privilege and the Work Product Doctrine, ABA Section of Litigation, 35 (3d ed. 1997)]

Some general suggestions:

  • Do not combine requests for legal advice with requests for other advice; let one document or communication do one thing.  This will help to preserve the confidentiality of legal inquiries and advice.

  • In the age of email, communications are often directed to many recipients, including counsel.  Such a scenario may create a presumption that the communication was not solely for legal purposes, which could mean that no attorney-client privilege will attach.  Keep this in mind when deciding how you address communications.

  • Email messages can often be passed around an organization through email “chains” or “threads.”  If a non-lawyer employee forwards an attorney’s legal advice to others for an authorized legal purpose, it will remain protected.  But if a non-lawyer employee forwards that advice to other non-lawyers for administrative or other non-legal reasons, the privilege might be lost.  So think twice, or check with counsel, before forwarding legal advice.  

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