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The Attorney-Client Privilege: We Can't Talk About Squat

In today's blog post, I discuss the attorney-client privilege. Why does it exist, what does it protect and how do we deal with it on an almost daily basis. The attorney-client privilege is one of the oldest and most well knows privileges in our business and we have the issue come up time and time again. That being said, the job of the litigation process and the Courts is to engage in truth seeking. How is it that a privilege like this exists that requires we attorneys to remain silent ?

Privileges based on confidential communications are designed to encourage certain types of behavior or to serve a certain desirable purpose. The attorney client privilege is based on the notion that a client my be inclined to withhold information from an attorney if the client fears that the attorney can be compelled to reveal confidences. The lawyer will then be hindered in providing legal services because he or she will not have all the important facts. The attorney client privilege is, as a result, intended to foster open dialog between the lawyer and the client that is deemed necessary to effective representation of the client. In New York, you can find the basic outline of the attorney-client privilege in CPLR 4503.

The attorney-client privilege is defined as follows: Unless the client waives the privilege, an attorney or his employee, or any person who obtains without knowledge of the client evidence of a confidential communication made between the attorney or his employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication. There is more language in the statue, but for purposes of this blog post, I will keep the definition simple. So, you can see the initial questions is whether an attorney-client relationship exists at the time of the relevant communication. How do we determine if an attorney-client relationship exists ?

First, to determine if an attorney-client relationship exists, a Court will look at the surrounding circumstances. A simple statement by an attorney or a client that the relationship existed or did not exist is not enough for a Court to make this determination. Information must be provided to a Court to show that the client contacted the attorney in his or her capacity as an attorney for the purpose of obtaining legal advice. The client's belief is the most significant factor.

The next step is to determine if there is a communication between the attorney and the client. There are several forms of communication, verbal, written, gestures or any other action. The privilege generally does not cover an attorney's observations about the client's demeanor or mental capacity that anyone could easily see. A client telling an attorney about an event does not make the information the client has about the event privileged either. The communication to the lawyer is confidential but the client could be compelled to testify about what he or she knows about an event. Likewise, transferring documents to an attorney does not make the documents that a client provides confidential either. The client can be forced to produce the documents. The attorney client privilege also applies to corporate clients as well.

With all of this in mind, there are exceptions to the attorney-client privilege too. There is an exception for a deceased client's communications with counsel concerning the preparation, execution or revocation of a will or other relevant instrument in any action involving the probate, validity or construction of a will. There is also an exception to the privilege if the communications were made in contemplation of a future fraud or crime. If a client sues an attorney for malpractice, the privilege is lifted because the attorney needs to defend himself or herself. If the client of an attorney owes a fiduciary duty to a third party, the party to whom the duty is owed may be able to compel disclosure. Clients can also waive the privilege.

So, with all of this in mind, how can this privilege affect you ? Well, the mere fact that you consult with an attorney can be something that is considered confidential. Anything you say to us, if you are saying it to us in our capacity as attorneys and for the purpose of gaining advice and information, is something that we have to take with us to the end of our days. As I stated in the title, we can't talk about squat. In the end, the attorney client privilege is an issue that we think about on an almost daily basis and you can rest assured, if you provide any one of the attorneys in our firm with confidential information, it will remain confidential.