Attorney-client privilege ensures that anything you tell your attorney will be held in strict confidence. But you must be mindful about preserving the privilege. Even an unintentional waiver can make your communications fair game for a legal adversary or government investigator.
How the Attorney-Client Privilege Works
Under N.J.S.A. 2A:84A-20, [f]or a communication to be privileged, it must initially be expressed by an individual in his capacity as a client in conjunction with seeking or receiving legal advice from the attorney in his capacity as such, with the expectation that its content remain confidential.” Accordingly, the privilege only protects the essence of the communications actually exchanged by the client and attorney and only extends to information provided for the purpose of obtaining legal representation.
Communications for non-legal advice purposes are not covered by the attorney-client privilege. So if a corporate attorney provides business guidance, those communications will not be protected.
By protecting the client confidences, the privilege encourages clients to be open and honest with their attorneys, thus allowing more informed and effective representation. Once the attorney-client privilege is established, a client may refuse to disclose any privileged communication, and prevent his or her lawyer from disclosing it. A client may also prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the lawyer, or (ii) in a manner not reasonably to be anticipated, or (iii) as a result of a breach of the lawyer-client relationship, or (iv) in the course of a recognized confidential or privileged communication between the client and such witness.
Maintaining Attorney-Client Privilege
To preserve attorney-client privilege, it is essential to ensure that communications involving third parties remain covered. Because attorney-client privilege generally only applies to communications intended to be kept confidential, a communication knowingly made within the presence of a third party may nullify the privilege.
Nonetheless, courts have routinely held that third parties who are assisting an attorney in providing adequate legal advice to a client do not destroy attorney-client privilege. For example, an exemption from the waiver accrues if such communications are shared with an agent of the attorney, which may include investigators and accountants retained to assist the attorney in rendering legal advice and instruction
Attorney-client privilege may also exist between an attorney and a corporate client’s employees. In the seminal case of Upjohn v. United States, the U.S. Supreme Court held that communications made by mid or low-level employees within the scope of their employment to the corporation's attorney for the purposes of aiding counsel in providing legal advice were protected by attorney-client privilege. Accordingly, communication between the attorney and such individuals is protected so long as such communication (1) was made at the direction of the corporate officials, (2) the matters discussed were within the employee’s duties and were not available from the upper-level employees, (3) the purpose of the inquiry was to obtain legal advice, and (4) the communication was intended to be kept confidential.
Avoiding Waiver of Attorney-Client Privilege
It is also imperative to maintain privilege by avoiding any claim of waiver. A client may waive attorney-client privilege by providing informed consent to his or her lawyer to reveal information otherwise protected by the privilege. However, a waiver is not always intentional and can occur when the communication at issue loses its confidential nature. For instance, if a privileged communication is shared with third parties, such as a family member or business associate, the privilege may be deemed waived. In addition, those persons can be required to testify regarding the conversation.
I recently had a case in which the defendant read portions of an email from his attorney to a third party. This allowed me to demand that the defendant produce the entire email in discovery, because in revealing a substantial portion of the email, the defendant opened up what his attorney wrote to him to discovery by my client, the plaintiff.
Technology has increased the risk of unintentionally waiving attorney-client privilege. To reduce the risk of losing the privilege that would otherwise attach to the attorney-client communications, businesses should adopt and implement a requirement that all attorney-client email communications include a legend identifying them as such and that careful consideration must be given before forwarding these communications.
Remote working has also made it more challenging to preserve attorney-client privilege. Employees who are working from home and consulting with counsel via videoconferencing platforms like Zoom must understand that they must take precautions to keep sensitive business data confidential. It is equally important for employees to understand that the legal protections afforded to attorney-client privileged communications hinge on the information being kept secret.
For instance, employees must make sure that third parties who are outside of the protected attorney-client, such as family members and roommates, are not present when discussing sensitive topics. If they are, it could prevent those communications from being protected under attorney-client privilege. To further preserve confidentiality, clients and their attorneys should ensure that meetings are password protected and that proper protocols are in place to prevent meetings from being recorded without authorization.
Clients often have misconceptions about the scope of the attorney-client privilege and the steps that must be taken to preserve it. It is imperative to educate yourself and your employees, as missteps can lead to serious legal headaches. As this article only touches on some of the issues that may arise, we encourage business owners to work with experienced counsel to determine if they have the proper policies and procedures in place.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Bob Levy, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.