Opinion: Ins, outs of attorney-client privilege

Kirk Kaczmarek

Businesses and business owners possess all kinds of private and trade secret information vital to their success. If this information were disclosed publicly, it could remove competitive advantages and, in some situations, open the door to legal liability.

As a result, businesses need assurance that their confidential information will remain classified when disclosed to their attorneys. Fortunately, just as doctors are restricted from disclosing health records to the general public, the attorney-client privilege protects certain information disclosed to attorneys.

In the interest of protecting confidential information, businesses should understand when this privilege applies, what types of information the attorney-client privilege protects, and when the privilege might be waived or become inapplicable. Here are some of the basic rules concerning this privilege.

Beyond best practice
The attorney-client privilege is not merely a best practice for attorneys. It is the law that all licensed attorneys are required to follow. Generally speaking, your lawyer cannot disclose any information relating to the substance of your legal representation without your informed consent. The privilege applies to confidential communications – both written and oral – with attorneys, as well as documents prepared for the purpose of such representation, e.g., attorney notes.

It is crucial to note the privilege only attaches to communications made during periods in which an actual attorney-client relationship exists. Such a relationship does not come into being simply because you spoke with an attorney. Volunteering confidential information to an attorney in an informal setting without forming an attorney-client relationship would not protect that information. The best way to clearly establish that such a relationship exists is to retain the attorney and sign a formal representation agreement. However, in cases where a client seeks the advice of an attorney in a more formal setting, e.g., an initial consultation at the attorney’s office, and makes it known that such communications are privileged, or confidential, such communications may still be privileged even if the client decides not to retain the attorney in an official capacity.

Once the attorney-client relationship is established, any confidential communications related to your representation will remain protected. One-on-one communications with your attorney or communications in the presence of an official agent or representative of a client or the attorney, e.g., secretary or paralegal, would be privileged. For businesses, the privilege automatically extends to communications with corporate managers and can also extend to employees under limited circumstances. However, should you communicate with your attorney in the presence of any other person, that communication would not remain confidential, and the privilege would be waived as to the information disclosed.

Special circumstances
Electronic communications present unique issues when it comes to preservation of the attorney-client privilege. Too often, clients will post sensitive information on their social media pages, and this immediately waives the privilege as to such information. Additionally, communications of privileged information via email should be made with extra caution to avoid disclosure to an unintended recipient. Therefore, clients and businesses should take extra care to ensure any communications with their attorney via email will not accidentally waive the privilege and take time to educate employees on the importance of keeping sensitive information off their social media pages.

Finally, the attorney-client privilege does not apply to certain communications, including when a client seeks advice on how to commit fraud or a crime, in controversies between joint clients or between a client and their attorney, where the attorney thinks it reasonably necessary to prevent death or substantial bodily harm, or to comply with other law or court order.

Understanding this privilege can help individual clients and businesses navigate the way they communicate with their attorneys, ultimately protecting information that provides a competitive edge or that could become a legal liability. Businesses should take special care to ensure their employees are properly instructed when speaking to attorneys and to keep all communications with their attorneys confidential. It is always prudent to consult with a legal professional to determine how the privilege applies to your specific situation.

Kirk Kaczmarek is an associate attorney at Carnahan Evans PC. He can be reached at kkaczmarek@carnahanevans.com.