No doubt you're familiar with the notion of attorney-client privilege. But do you understand what it covers and doesn't? And that privileges can vary by state.
At its core, the attorney-client privilege only protects the confidentiality of communications between attorneys and clients. As a result, attorneys may not divulge client confidences to anyone outside the legal team without the client's consent.
Moreover, others may not compel attorneys to do so. In addition, it extends to agents of either the client or the attorney. Finally, the privilege applies to companies and institutions as well as individuals.
Four essential items establish an attorney-client privilege:
- A communication
- The communication occurs between two privileged persons
- The communication takes place in confidence
- The purpose relates to giving legal assistance to the client
The principle doesn't require payment to take effect. It takes effect when information is gained representing a client or in communications related to doing so. Its primary purpose is to allow clients to give information so their attorneys can represent them more effectively.
Third Parties
Generally, the client waives their privilege if a third party is present during the attorney-client meeting. As a result, a prosecutor can require the third party to reveal information from the conversation.
However, exceptions apply from state to state. If a third party is present to aid the cause, the attorney-client privilege still applies. Third parties can be legal staff members, outside parties with relevant expertise, interpreters, or even a family member.
In these instances, the third party's role is the key. If they serve an integral role, the privilege remains intact.
Who Evokes the Privilege?
Note that clients or their representatives hold the privilege. In most instances, only they can waive that privilege, not their attorneys.
However, as the client's agent, attorneys can assert the privilege and are generally expected to do so (even in the client's absence). It's important to note that if the client is a company, then the privilege belongs to the members of the control group, for example, the board of directors.
You can read more about Pennsylvania privileges here.
It must be noted that attorney-client privilege applies even if an attorney never winds up representing a client. In addition, it stays in effect after the attorney-client relationship ends and even follows the client's death, barring some exceptions.
The Duty of Confidentiality
In addition to attorney-client privilege, a second concept applies to attorneys regarding the duty of confidentiality.
The former is a concept based on the law of evidence. It's present in the statutes of all fifty states. In addition, it only protects communications between attorneys and clients. Information is not covered if available from other sources.
However, the latter is based on ethics and has a much broader scope for information protection. States vary in their application. Unlike attorney-client privilege, the duty of confidentiality extends beyond actual attorney-client communications. It includes all information about legal representation regardless of source.
As a result, attorneys may be required to testify about client communications under compulsion of law, meaning the court determines the attorney-client privilege doesn't cover some information. That information may still, however, be covered by the attorney's ethical duty of confidentiality.
The Work Product Doctrine
Initially, the privilege only protected verbal communications between attorneys and clients. Today, the work product doctrine applies to the state that a party may not discover or compel disclosure of written or oral materials prepared by or for an attorney.
In Pennsylvania, the doctrine protects the disclosure of mental impressions, conclusions, opinions, notes or summaries, or legal theories of a party's attorney, respecting the value or merit of a claim or defense or respecting strategy or tactics.
Documents include emails, text messages, letters, and memoranda. The privilege protects communications created by the client and those addressed to the client.
However, if an attorney receives documents from a client, it does not necessarily mean they are privileged. The privilege extends to documents the client prepares for the attorney to obtain legal advice.
Waivers of Attorney-Client Privilege
Attorney-client privilege isn't absolute. For example, the American Bar Association's Model of Professional Conduct allows attorneys to disclose privileged information to represent their clients.
Attorneys may also reveal confidential information when necessary in the circumstances such as the following:
- Client communication with an attorney presenting their intent to commit a future crime
- Information that prevents death or severe injury
- Preventing a client from committing a crime intended to damage someone's financial or property interests
- Knowledge of perjured testimony
- Missing person
- Threats to harm someone
- Situations where an attorney represents two parties
As mentioned, clients may waive the privilege by consent or by failing to object to a discovery request seeking privileged communication. In Pennsylvania, waiving the right applies to intentional disclosure, inadvertent disclosure, or failure to assert the privilege.
Sharing information with a third party outside the attorney-client relationship can waive the privilege.
Crime-Fraud Exception
The crime-fraud exception also applies. The Supreme Court ruled the attorney-client privilege doesn't extend to communications intended to gain advice for the commission of a fraud or crime. In most instances, crime-fraud applies to ongoing or future instances.
Some states apply the crime-fraud exception to civil tort. For example, a client may seek advice from their attorney on how to unlawfully trespass on an individual's property.
When applied, the crime-fraud exception may lead to the subpoena of an attorney, forcing them to disclose communications.
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