Attorney-Client Privilege and Confidentiality

What is the attorney-client privilege?

The attorney-client privilege provides that all discussions between you and your attorney for the purpose of obtaining legal services or advice are confidential and privileged.  Neither you nor your attorney can be forced to disclose what you discuss.  There are some exceptions discussed below.

The attorney-client privilege applies to oral communication in-person and over the phone, mail correspondence, and email messages sent between you and an attorney.  Email messages through your private account are protected, but only if no one else has access to your account.

An attorney’s staff members are an extension of the attorney and must keep confidential all privileged communications and information they become aware of as a result of their employment by the attorney.

What are the exceptions to the attorney-client privilege? 

Note that not everything you tell your attorney is privileged.  For example, information that is available by searching public records is NOT privileged even if a client gives copies of that information to his or her attorney.  Information that can be acquired by the general public or is known to others is not privileged.  In addition, the attorney-client privilege protects only the communication between you and your lawyer, not necessarily the subject of the communication.  To understand the difference, imagine that you tell your lawyer that last Christmas Eve you were in your sleigh delivering toys to children.  Because your communication with your lawyer is privileged, you cannot be compelled to answer the question, “What did you tell your lawyer about where you were on Christmas Eve?”  However, you may be compelled to answer the question, “Where were you on Christmas Eve?” 

What can you do to protect your attorney-client privilege?

First, do not tell others what you discuss with your attorney or the advice your attorney gives to you, and do not disclose to anyone else letters or email messages that your attorney sends to you.  If you do so, you will lose the attorney-client privilege.  Meetings between you and your attorney should always be held in a private setting where you can speak freely about your legal issues.  If you speak with your attorney by phone, do so where no one else can hear you.

Second, do not use an email account provided by your employer to communicate with your attorney.  Courts have held that information sent via a client’s work-provided email account is NOT protected by the attorney-client privilege because most employers retain the right to read email messages sent or received through their email accounts.  Similarly, do not use an email account that you share with anyone else, and protect the password to your email account.

Third, do not ask your attorney to fax information to you unless you are the only person who has access to the fax machine or online fax account.  The fact that someone else may pick up the faxed document can destroy the attorney-client privilege for that document.

What is the difference between “privileged” and “confidential”?

The fact that your communication with your lawyer is “privileged” means that neither you nor your lawyer can be forced to disclose what you talked about.  That means that neither of you can be forced to turn over privileged letters or email messages, and it means that neither of you can be forced to testify (either in a deposition or at trial) about what you talked about. 

However, anything that your lawyer learns as a result of his or her representation of you is considered “confidential,” even it if is not subject to the attorney-client privilege, and your attorney is not permitted to disclose any of your confidential information, with some exceptions.  One big exception is that your attorney may disclose information in order to perform the services that you engage him or her to perform.

If you have questions about the attorney-client privilege, please ask your lawyer.