Attorney Client Privilege

By: Attorneys Evan Mayer and Maggie M. McLoone

Many people who talk to a lawyer understand that what they say is protected by a concept known as “attorney-client privilege.” Attorney-client privilege is one of the oldest aspects of the modern legal system and goes back to Roman times. Its purpose is to ensure open communication between lawyer and client so all relevant information is known, even that information which is embarrassing or unpleasant.

The attorney-client privilege can be best explained by the “5 Cs:” a Communication made in Confidence between a Client and Counsel for the purpose of seeking or providing legal Counsel or advice. Each one of these C’s must be present or the privilege will not apply to the situation.

First, there is no privilege without a communication. Communication is a very broad term—and virtually anything told to an attorney can qualify. This includes information shared through talking, emails, text messages, and letters.

Next, the communication must be in confidence, meaning that it is limited to the lawyer and the client. To create confidentiality, steps must be taken to protect the communication such as ensuring no one else can hear or read what is being shared. For example, telling an attorney information in a crowded restaurant or sending your attorney emails from a company email address that your employer can access is not confidential. If steps are taken to create confidentiality, such as going into a room and closing the door, and someone, unknown to the lawyer and client, is eavesdropping outside the window, privilege would still likely apply as the lawyer and client took the required steps.

The individual sharing the information also must be a client. To be a client does not require a formal retainer agreement. Instead, the individual must honestly believe they are consulting the lawyer for purposes of legal advice. Gossip or complaints shared with a friend, who happens to be a lawyer, would not be considered client communication unless the individual has clarified they are talking to the lawyer not as a friend, but as a client. This distinction may seem technical but when talking to your lawyer-friends, distinguishing your “role” in the conversation is vital.

Next, the communication must be to counsel—a lawyer. Counsel also covers communications with people who are assisting the attorney in the representation, such as their partners, paralegals, private investigators, or accountants providing tax advice.

Finally, the communication’s purpose must be to seek legal advice. Idle talk about the Packers or stock market is not generally protected. Even business advice may fall outside privilege depending on the situation.

A final thought on attorney-client privilege is that the client owns the privilege. This means the lawyer can never reveal the information shared, except for a few exceptions such as the client saying they are going to commit a crime. Even if the client dies or does not end up hiring the lawyer for their case, the information cannot be shared if all 5 C’s occur.

The client’s ownership of the privilege also means the client has the power to waive it. Posting about your legal problems on social media or discussing your conversation with your attorney at the local bar may ultimately waive your privilege. The best practice would be to confide in your attorney alone, because then their lips are sealed.