Few legal principles are as sacred as the attorney-client privilege. This privilege shields communications between attorneys and clients from compelled disclosure.
It is a cornerstone of the American legal profession, fostering open and honest communication between clients and their legal representatives. Preserving this privilege is paramount and requires diligence and careful attention. This column will explore essential tips for safeguarding the attorney-client privilege.
1. Understand the Scope of the Privilege and Educate Clients: It’s important for both attorneys and clients to have a clear understanding of what constitutes privileged communication. The privilege applies to confidential communications between an attorney and their client that are made for the purpose of seeking or providing legal advice. As such, it is advisable to avoid discussing non-legal matters or sharing information in a context where privilege might not apply. Empower clients with an understanding of the attorney-client privilege and its limitations. Educated clients are more likely to contribute to maintaining the privilege by being cautious about what they share and with whom.
2. Establish the Confidentiality Intent: To ensure the privilege is maintained, explicitly state, preferably in writing, that a communication is intended to be confidential and is for the purpose of seeking or providing legal advice. This can be done through engagement letters, email headers or other identifiers in written communications. Such documentation can help provide automatic presumptions that a respective communication is confidential. Saying in all caps “PRIVILEGED AND CONFIDENTIAL” on confidential communications is never a bad idea.
3. Limit Third-Party Presence: Whenever possible, limit the involvement of third parties in communications between attorney and client. The presence of third parties, even family members or friends, can potentially weaken—or even waive—the privilege. The third-party must be an agent of the client for the privilege to be maintained and only certain agents necessarily maintain privilege. If it’s necessary to involve a third party, consider seeking a separate legal opinion on the matter.
4. Use Secure Communication Channels: In today’s digital age, communication can easily be compromised. Use secure communication channels when exchanging sensitive information, such as encrypted emails or secure messaging platforms. Be cautious when discussing matters over unsecured phone lines or public Wi-Fi networks. Lastly, be very careful discussing confidential matters in public settings (this can be the easiest way to waive privilege).
5. Avoid Sharing Information Extraneously: When discussing legal matters, stick to the relevant details. Sharing unnecessary information increases the risk of inadvertently waiving the privilege. Only disclose what’s essential for legal advice or representation. Keep personal discussions and legal discussions separate.
6. Be Cautious in Group Communications: Group emails or meetings involving multiple clients and attorneys can be tricky. If one client waives the privilege by sharing information, it could potentially affect the privilege for all parties involved. If feasible, hold separate discussions for each client to preserve individual privilege.
7. Separate Business and Legal Advice: If an attorney provides both legal and business advice, it’s important to clearly delineate when they’re operating in each capacity. Mixing business and legal advice can blur the lines of privilege. It is advisable to scroll down email chains to see if a string involves privileged and unprivileged topics. Start a new chain where necessary. And encourage clients to seek separate legal counsel for legal matters, even if they are already receiving business advice from the attorney.
8. Address Waiver Carefully: Waiver occurs when a party intentionally or inadvertently relinquishes the protection of the privilege, thereby allowing those communications to be disclosed. In situations where the privilege might be inadvertently waived, consult with legal counsel immediately. Preventive actions can be taken to reduce or eliminate the risk of waiver, but these actions must be promptly taken.
Not all legal systems recognize the attorney-client privilege. It is an important privilege recognized in American jurisprudence that protects a client’s most sacred confidences. It is critical to be vigilant in taking all efforts to safeguard the attorney-client privilege. Using the above tips, the attorney-client privilege can continue to serve as a bedrock of trust and candid communication within the legal process.
Jake Evans is a shareholder at Greenberg Traurig’s Atlanta office who practices complex business litigation and is the former chairman of Georgia’s State Ethics Commission.