Attorney-client privilege refers to a legal privilege that works to keep confidential communications between a lawyer and his client private. Communications made to and by a lawyer in the presence of a third party may not be entitled to this privilege because they are not confidential. Even communication between two people who are not lawyers can be privileged if it is legal advice provided by a lawyer. To capture these references, one must pay close attention to the substance of the communication and understand the types of legal issues being considered and by whom.
Let's say, for example, that a communication between two employees who are not lawyers includes the phrase “I consulted with John and he said that terminating that contract would increase our liability. The reference to “liability” gives an idea that the judgment can be privileged and should be drafted. However, the phrase could also say: “I spoke to John and he said that we should definitely not terminate the Acme contract. At first glance, communication would not be privileged.
However, let's say you know that John is the customer's general counsel and that you have seen other communications with John in which John provides a legal opinion on whether the company should cancel the Acme contract. In that scenario, the safest option would be to treat the statement as privileged and remove it from communication. An attorney-client relationship may also be expressly recognized by the “counsel's appearance on behalf of the client, including filing pleadings in court for the client, drafting documents on behalf of the client, or appearing in court as a representative of a litigant. The attorney-client privilege is waived when the client sues his lawyer; the lawyer can defend himself by disclosing attorney-client privileged information.
An express contract is not necessary to form an attorney-client relationship; the relationship may be implied by the conduct of the parties. While this list of factors is illustrative, none of these factors alone will affirmatively establish the existence of an attorney-client relationship. As elementary as this concept may seem, many clients assume that the relationship exists and mistakenly rely on the protection of the privilege, but the privilege does not exist until the relationship is firmly established. In most cases, determining that an attorney-client relationship exists is not a laborious task, since most of the time, the lawyer has expressly acknowledged the client's representation.
By its very nature, the attorney-client relationship offers a distinct and invaluable right to protect communications from forced disclosure to any third party, including business partners and competitors, government agencies, and even criminal justice authorities. Such communications are privileged only if the overriding purpose is to promote the objectives of the attorney-client relationship. Although attorney-client privilege, like the fiduciary duty of confidentiality, is rooted in common law, today attorney-client privilege is generally governed by state law, and there are few exceptions and they are also generally legal. A communication is protected by the privilege only if it is intended to be confidential, that is, if it is made with the expectation that it will not be disclosed outside the attorney-client relationship.
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