The attorney-client privilege is important to foster open discussions between attorneys and their clients. As recently as Jan. 23, 2019, the Pennsylvania Supreme Court reaffirmed the principles of the privilege and the importance of clients and attorneys being able to rely on it. But in order to rely on the privilege, it is necessary for clients to understand what it is.
Smart Business spoke with Ashleigh M. Morales, an attorney with Semanoff Ormsby Greenberg & Torchia, LLC, about the attorney-client privilege and common ways clients accidentally waive the privilege.
What is protected under attorney-client privilege and when is it in effect?
Communications between a client or a potential client and an attorney are protected under the attorney-client privilege. The privilege only applies if it relates to confidential communications — others cannot be present when the communication is made or copied on the email when the communication is sent — and needs to be for the primary purpose of obtaining a legal opinion or legal services (and not for the purpose of committing a crime or a wrongful act). The parties must intend for the communication to be confidential, as well. The privilege protects both oral and written communications. While the privilege would not protect the fact that an attorney and client met at a specific place at a specific time, it would protect the communications that took place there.
When the relationship is between a company (rather than an individual) and an attorney, what constitutes privilege and who is covered by privilege?
In that situation, when the client is a company, the privilege covers communications between the company’s attorney and the company’s employees, officers and agents who are authorized to act on behalf of the company. In addition to the requirements regarding communications that are to be protected by privilege, when a company is the client, the communication must also be regarding a matter that is within the scope of the employee’s, officer’s or agent’s duty to the company.
Why is attorney-client privilege important?
The attorney-client privilege is important because it allows for honest discussion between a client and his or her attorney. Privileged communications are typically not discoverable in litigation and generally cannot be used against the client (as long as the privilege has not been waived).
How do clients waive the attorney-client privilege?
If an email containing a privileged communication is sent to someone other than the acting attorney, attorney-client privilege is waived. Perhaps the privilege was not needed for the last email they forwarded, but it was for the string of emails below it. Clients should be careful when forwarding their attorney’s emails or responding to their attorney and copying others on the email.
Another way to waive the attorney-client privilege is to include another person in your meeting or on your phone call with your attorney. While it may be awkward for your attorney to ask your friend who came with you to wait in another room while you meet, it is necessary to maintain the attorney-client privilege. Also, adding your attorney to an email does not automatically protect the email as privileged — the communication must be for the purpose of requesting or receiving legal advice or services. Therefore, an email from one employee to another employee is not automatically privileged by adding the company’s attorney to the email.
Clients should stop and think before hitting reply all or forwarding their attorney’s email. If the communication is confidential, relates to legal advice and something you would not want discoverable in litigation, keep it between you and your attorney. It is better to play it safe, because once the communication is sent to a third party, the privilege is waived and there is no undoing it.
While privilege may need to be waived to raise a defense or claim, it is important to protect attorney-client privilege unless your attorney advises you that waiving it would be necessary or advisable.
Insights Legal Affairs is brought to you by Semanoff Ormsby Greenberg & Torchia, LLC