Attorney-client privilege is an often discussed and mostly misunderstood legal enigma. It has been my experience that many business people don’t have a clear understanding of when this privilege exists and when it doesn’t. This possibility for confusion can sometimes lead to a consumer of legal services thinking that their legal matters are protected when they are not…In fact, I had an interesting conversation with a client last week who asked me if a non-disclosure agreement (NDA) was necessary when dealing with a new law firm. What he was really attempting to ask was whether the attorney had a professional legal obligation to preserve the confidentiality of his information, or if he needed additional protection.
Attempting to define attorney-client privilege is not a simple task because there are several items that need to be considered in determining whether or not it exists. There are differences between the legal parameters and restrictions governing privilege, and an attorney’s ethical obligations dealing with confidentiality, which may be broader in scope. This matter is further complicated by the fact that interpretations of legal privilege may vary based upon legal jurisdictions…an example might be that the New York State Bar Association may interpret privilege differently than the Florida State Bar Association and so on…
In general, the first thing that must occur for attorney-client privilege to exist is the formation of an attorney-client relationship. While this does not automatically happen just because information is shared, or a conversation takes place, in some cases (which can vary by jurisdiction) disclosure which takes place “in anticipation of” a forthcoming legal relationship may qualify.
As mentioned above, privilege and confidentiality are two separate issues. Everything covered by legal privilege is confidential, but confidentiality extends to broader areas beyond just those things covered by legal privilege. Confidentiality refers to an obligation of the lawyer not to voluntarily disclose information to a third party. Privilege refers to a right of the client that allows the attorney to withhold information even under compulsion (discovery, subpoena, etc.) unless statutory exceptions state otherwise.
Another item to keep in mind is that attorney-client privilege normally only covers matters pertaining to the practice of law. In other words, if you disclose a particular business/personal matter to an attorney which has no valid legal ramification, the attorney cannot rely on privilege to protect such a disclosure. This means that you cannot simply dump information and documents on your attorney without valid legal reason and then claim the defensive argument of privilege. Furthermore it should go without saying that you cannot use attorney-client privilege in anticipation of a crime.
The best thing to do when attempting to discern whether or not attorney-client privilege exists is to evidence the existence of a formal attorney-client relationship. This is best accomplished by the execution of an engagement letter with your attorney which defines the scope of the relationship. If you can get your law firm to sign an NDA this will only broaden the scope of your protection with regard to confidentiality. Lastly, when in doubt simply ask your attorney if your impending disclosure can be treated as privileged information.
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