What Constitutes an Attorney-Client Privilege and Why is it Essential?

By Annie Stephan Dec 16, 2023 12:35 AM EST

(Photo : Unsplash/Cytonn Photography)

Unquestionably, a business world teeming with consultants, technical advisors, and outside experts can seem overwhelming. In this landscape, the blessings of engaging legal counsel may seem hidden. Its richness is mainly manifested through an unparalleled advantage - the attorney-client privilege. The privilege allows sensitive communication between an attorney and their client, encouraging open conversations and providing a zone of privacy away from compelled disclosure to third parties.

Understanding the Attorney-Client Privilege

Rooted in Anglo-American jurisprudence, the attorney-client privilege, the oldest recognized privilege, serves as a bulwark against any attempt to compel an attorney to testify against their client. It has evolved significantly, underpinned by numerous policies and ethical considerations.

This privilege is intertwined with accessible communication, where a client, sans fear, can disclose their secrets and sensitive information to their counsel. This privilege allows a dialogue space where the client can candidly and transparently discuss their legal issues, enabling the attorney to understand all relevant aspects and details of a case.

This trust-based relationship is highly beneficial. It allows the attorney to impart well-reasoned, precise, professional advice and assures the client that their statements won't be used against their interest. Consequently, well-informed attorneys can fulfill their professional responsibilities effectively, maintain loyalty, and contribute to justice administration.

When is the Attorney-Client Privilege Applicable?

While defining attorney-client privilege remains a complex issue, certain essential elements underpin its existence:

There must be a communication;
This communication must occur between the privileged persons;
The communication must take place in confidence; and
The purpose of this communication must be to seek, obtain, or provide legal assistance.

These elements boil down to forming an attorney-client relationship, the privilege's bedrock. A client mustn't make assumptions about this relationship or the privilege because it doesn't exist until the relationship is firmly established.

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What Constitutes an Attorney-Client Relationship?

The establishment of an attorney-client relationship is typically straightforward. An attorney usually acknowledges that they are representing a client. We can observe this through engagement letters, fee contracts, oral agreements, and explicit acknowledgments of the scope of representation. In other cases, actions like filing pleadings in court on the client's behalf, drafting official documents, or representing the client in court can imply the attorney-client relationship.

Despite the simplicity of most cases, determining attorney-client relationships can become complicated. Expectations of the relationship can't exist unilaterally in the client's mind without a "reasonable belief" from the client about the relationship's existence.

Exceptions to the Attorney-Client Privilege

As pivotal as it is, the privilege offered by attorney-client confidentiality doesn't blanket every circumstance. There are exceptions where the privilege might be waived or not apply, puncturing the general perception of an invincible shield. Let's unravel these notable exceptions:

Exception Triggered by Client's Demise

Upon the death of a client, the attorney-client privilege can be revoked. Suppose a dispute arises between the deceased's successors, including heirs or legatees, or any other parties claiming under the defunct client. In that case, the veil protecting prior legal communication might be lifted.

The Fiduciary Duty Exception

Even the empirical world of corporations, where attorney-client privilege holds significant influence, is not free from exceptions. A situation might arise where shareholders wish to pierce the fortress of corporate attorney-client privilege. This often occurs when shareholders, as de facto owners of the corporation, demand transparency, challenging the unrestricted applicability of the privilege.

The Crime or Fraud Exception

The attorney-client privilege isn't a free pass to conduct illegal activities with legal immunity. If a client seeks an attorney's assistance in committing a fraud or crime or in the concealment following such activities, the cloak of privilege vanishes. However, if a client seeks an attorney's counsel after committing a crime or fraud, the communication is privileged unless hints of subsequent concealment surface in the discussion.

The Common Interest Exception

An intriguing scenario happens when multiple parties, represented by the exact attorney in a single legal matter, dive into litigation. Neither client can brandish the attorney-client privilege against the other in such cases. This allowance features primarily when the litigation pertains to the subject of their shared representation.

How Crucial Is the Attorney-Client Privilege?

The attorney-client privilege extends to corporations as well. However, it's inherently more complex due to their nature as artificial "persons" under the law and the representative acting on its behalf. Courts have traditionally used either the subject matter or control group tests to ascertain the presence of this privilege for corporations. However, the current trend leans towards determining if the discussed matters are within the corporate duties of the employee.

Moreover, courts also privilege corporate officers seeking advice individually rather than corporately, given there's evident communication with counsel on personal matters like potential individual liability.

Final Thoughts

The attorney-client privilege is a longstanding cornerstone of our legal system that bolsters full and frank communication between attorneys and their clients. It necessitates trust, fosters honest conversations, and encourages individuals to seek legal advice without fear. Such an environment permits attorneys to provide the most informed, accurate recommendation possible.

However, the privilege is often subject to misconceptions and misinterpretations. Thus, it is paramount to seek help from experienced legal counsel, supporting individuals in navigating the complexities of the legal world. Legal guidance can ensure you approach matters clearly and understand the rights and protections entitled to you, especially concerning confidential communications under attorney-client privilege.

Speak to an experienced lawyer today to discuss your legal needs and understand the protection attorney-client privilege offers.