Why are attorney client communications confidential

Plunkett is a co-managing partner of the firm and has over 3 decades of experience in commercial and real estate finance, troubled loan workouts and secured party remedies.

Hackett Feinberg, P. This communication is for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. The potential for an unintended waiver of the privilege most often results in the following non-exhaustive situation: Disclosure of the privileged communication or information to third parties. Careless forwarding of emails. Note the communication with counsel may be several frames removed from the top email in the chain.

We have seen instances where a borrower asks a loan officer a legal question concerning a loan. Never do this! This not only may waive the privilege as to the specific question being asked, but if there is a long email chain of communications between the loan officer and the lawyer that is included with the forwarded email, all manner of confidential strategies, concerns and potential problems with loan documents or contemplated actions may be revealed as well.

Never carelessly distribute lawyer e-mails, drafts of documents with lawyer comments, legal analyses or opinions or other attorney-client documents to anyone outside of the bank. Always check the addresses to an email to make sure you have the correct persons only included in the communication. Auto-complete features in email systems can result in disaster if used carelessly.

Further, if you have any question whether or not you should be invoking the attorney-client privilege, always err on the side of caution and protect the documentation trail as much as possible. Note that there are no guarantees when it comes to invoking the attorney-client privilege. Just because you mark a document "Privileged and Confidential" doesn't mean that a plaintiff's attorney won't challenge the privilege and that a court won't overturn it.

Therefore, let caution rule the day when it comes to exchanging emails, documents, or other electronic communications that you mark privileged. After all, it could come as quite a surprise if a judge allows the communication to be shared with the other party and made part of the public record, even though you thought you followed the steps below properly.

The steps that follow will help increase the chances that a particular communication or series of communications can withstand legal scrutiny and remain privileged, but without a crystal ball, you can't guarantee that the privilege will be sustained because a court has the discretion to disallow the privilege.

That being said, you've got to know how to structure an attorney-client privileged communication to maximize the chances of it not being overturned by a court at some point in the future.

To do so, follow these general rules:. Rule 1 : Address communications to your attorney. This could be your in-house counsel or outside counsel, but for the attorney-client privilege to become effective, it must be addressed to an attorney who is providing legal advice and counsel.

The privilege does not protect communications between workers when no attorney is present. In other words, you can't send an email to your non-attorney boss and mark it "privileged and confidential" because without an attorney on the receiving end to provide legal analysis and advice, there's no mechanism to protect the communication from legal discovery.

Rule 2 : End the communication by asking your attorney for a legal opinion and analysis. You may be challenged in sustaining the privilege if you simply copy your attorney on your various emails without asking for official legal advice. Instead, to sustain the privilege, a judge will generally want to see that you reached out to your attorney for a legal opinion and recommendation.

If successful, your description of the facts and your attorney's recommended course of action will be protected from plaintiff attorneys' eyeballs and from a jury's considerations should the case proceed to trial.

Rule 3 : Label the top of the communication or the subject line of an email: "Privileged and Confidential: Attorney-Client Privileged Communication.

Rule 4 : Copy only a limited number of people who have a legitimate need to know the information. Do not copy or share the document with others, or the privilege may be lost. After all, if you copy 15 people on the communication, a court will likely infer that it wasn't all that confidential or proprietary to begin with.

So simply including too many people in the communication could jeopardize the privilege. As a rule, try and limit the audience to either only the attorney or to the attorney plus one other person for example, your boss. Rule 5 : Do not communicate the information discussed with the attorney with others unless instructed to do so.

The nature of attorney-client privileged communications is that they are highly confidential, limited in distribution, and created at a particular point in time on a strict need-to-know basis. Failing to create the document under such criteria could result in the loss of the privilege and the subsequent sharing of the material as part of the plaintiff attorney's case against your company.

That means that lawyers can't disclose what prospective clients reveal in confidence even if the lawyers never ends up representing them. In re Auclair , F. To be sure, though, you should confirm with a prospective lawyer that the privilege applies before you reveal anything you want to keep secret.

Discussions of previous acts are generally subject to the attorney-client privilege. If, for example, if a client tells his lawyer that he robbed a bank or lied about assets during a divorce, the lawyer probably can't disclose the information. But if a client initiates a communication with a lawyer for the purpose of committing a crime or an act of fraud in the future, the attorney-client privilege typically doesn't apply. Likewise, most states allow—or require—attorneys to disclose information learned from a client that will prevent death or serious injury.

Many have a similar rule where revealing otherwise confidential information would prevent or remedy financial injury due to a crime or fraud. The attorney-client privilege differs somewhat from state to state, and between state and federal court. When speaking to an attorney about a legal matter, make sure to go over the scope of the attorney-client privilege and the duty of confidentiality. The lawyer should be able to explain the specific law that applies to your situation, including relevant legal rules not mentioned in this article.

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Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. The Attorney-Client Privilege. Most, but not necessarily all, of what you tell your lawyer is privileged.

The Client's Privilege Generally, the attorney-client privilege applies when: an actual or potential client communicates with a lawyer regarding legal advice the lawyer is acting in a professional capacity rather than, for example, as a friend , and the client intended the communications to be private and acted accordingly.

Comparison: The Duty of Confidentiality The attorney-client privilege is, strictly speaking, a rule of evidence. Expecting Confidentiality Lawyer-client communications are covered by the attorney-client privilege only if the circumstances lend themselves to confidentiality.