Protecting the Attorney-Client Privilege
The ability of attorneys and clients to communicate confidentially knowing that, with very limited exceptions, their communications can be shielded against discovery, is a cornerstone of American jurisprudence. In California, this attorney-client privilege is codified.
The privilege applies to confidential communications between a client and an attorney. This simple concept, however, can become complex in its application. Two issues that frequently lead to dispute are: 1. who is within the scope of the privilege, and 2. what constitutes a waiver of the privilege?
The Scope of the Privilege
The privilege belongs to the client, and an attorney does not have authority to waive the privilege without the client’s consent. In a one-on-one, attorney and client situation, confidential communications between those two individuals are obviously privileged. In addition, third parties may be within the scope of the privilege. For example, staff members in the attorney’s office, private investigators and certain professionals, and even vendors (such as translators) are, or can be, within the scope of the privilege. Therefore, the protected communication might not be directly between the attorney and client, but through intermediaries. In the same fashion, the participation of such persons in confidential communication does not waive that privilege.
The analysis is more complicated with respect to organizations. In a large company, for example, the attorneys will not be communicating with everyone in the organization. Rather, sometimes people who are not in the direct line of communication may be the recipients of confidential attorney-client communications. Further, the fact that an attorney talks to an employee does not necessarily make that communication protected.
The attorney-client privilege can survive the existence of the entity. For example, if a corporation goes into a bankruptcy proceeding, the bankruptcy trustee becomes the holder of the privilege, on behalf of the corporation, even if the corporation is being liquidated. Even after liquidation, or after a company has gone out of business, the privilege still exists, even for the now defunct enterprise.
An additional complicating factor can be participation of an insurance company. In California, the law recognizes a “tripartite” relationship among the attorney, the client and the insurance company paying for the defense of the insured client. The attorney must be able to communicate in a confidential manner not only with the client, but with the insurance carrier as well.
The scope of the privilege, especially where large organizations are involved as parties, can be critical. For example, can opposing counsel contact employees of a corporate party? The law allows opposing counsel (directly or through a private investigator or other means) to contact employees or former employees who are outside the scope of the attorney-client privilege. The scope of that privilege is not necessarily dependent on the person’s job title. Therefore, at the outset of litigation involving large organizations, it is usually prudent for the attorneys and key client representatives to develop an action plan for identifying those persons within the intended scope of the privilege and limit confidential communication to such persons.
Preserving the Privilege
The privilege does not apply just because there is communication between an attorney and a client. If the attorney and the client are discussing something out in the open, in front of persons who have no interest in the matter, that communication will not be deemed confidential and the privilege will not apply. Likewise, even once the privilege attaches, it can be waived if the client discloses the communication to third parties who are not in the attorney-client loop.
Just as the question of the scope of the privilege becomes more complicated when the client is a large organization, questions of what constitutes a waiver likewise become more subtle. To whom within an organization can the communication be disclosed, without that disclosure constituting a waiver? This is true not only with respect to oral communication, but for letters, emails and other types of communication as well.
Many large organizations have an in-house legal department that makes maintaining the efficacy of the attorney-client privilege part of its regular duties. For organizations without such a department, it is prudent, at the start of a transaction or other legal matter, for representatives of the organization to communicate with counsel and undertake steps designed to avoid waiver of the privilege, either through inadvertence or intentional conduct. For example, those persons who are going to be in the attorney-client privilege loop need to understand that they should communicate confidential information only to other persons in that loop, and not to anyone outside of it. Steps should be taken to secure non-verbal communication and information. Email protocols should be established so that confidential emails are not sent to, or accessible by, anyone who is not in the scope of the attorney-client privilege. Likewise, documents should be secured so that only persons in the privilege loop have access to them.
Maintaining the protection of confidential attorney-client communication is a critical part of the attorney-client relationship, both with respect to litigation and transactions. It is important that the attorney and the client have a clear understanding of who will be within the attorney-client privilege loop and how the confidentiality of communication and information will be preserved.