Attorney-client privilege provides essential confidentiality between clients and their lawyers. However, depending on the law in each jurisdiction there may be instances when this privilege can be waived or limited.
Example: If a client discusses legal matters in public places where they could be overheard, attorney-client privilege cannot prevent people who heard what was being discussed from testifying about it later.
Client’s Voluntary Disclosure to a Third Party
Attorney-client privilege protects confidential communications between clients and their attorneys. It allows clients to freely disclose any confidential information with their lawyers for effective legal representation in legal matters. In order to maintain this important protection, clients must not reveal confidential communications to third parties – otherwise the communication could no longer be protected and could even be used against them in court proceedings by an opposing party.
There are several ways that clients may unwittingly breach attorney-client privilege when sharing confidential information, one being discussing it with third parties even if not related directly to their case – for instance a sheriff receiving advice about personnel law from an attorney and forwarding this advice onto other county sheriffs may have unintentionally waived their privileges.
An additional way a client may inadvertently waive privilege is simply being present when their lawyer and they discuss confidential information. If an additional party, such as an interpreter in court proceedings, isn’t needed for communication purposes then their presence can constitute waiver of privilege. A client present without the intent to waive privilege can still lose it if they testify about portions of what was discussed during conversation.
The crime-fraud exception of attorney-client privilege allows attorneys to divulge confidential communications between their client and government when suspected criminal activity has taken place. To use this exception successfully, however, clients must seek legal advice to either avoid or perpetuate criminal acts in order to take advantage of this provision; otherwise their confidential communications with their lawyer would no longer be protected as confidential.
The crime-fraud exception does not apply in civil wrong cases such as breach of contract or lawsuits against commercial enterprises, though in certain circumstances this protection may be waived; an example would be when clients seek legal advice on past misdeeds from attorneys; it can also be waived when clients attempt to defend their actions by alleging they relied on advice given from their lawyer during trial proceedings.
Crime-Fraud Exception
The attorney-client privilege serves to facilitate open dialogue between clients and their legal counsel, but has its limits due to court expectations for maintaining the integrity of the legal system. One exception, known as the crime-fraud exception, does not protect communications that facilitate criminal or fraudulent conduct – either planning such conduct directly or in relation to it indirectly. Unfortunately this means many hypothetical discussions at dinner parties or consultations with attorneys might not be protected under it.
To invoke this exception, clients must demonstrate an explicit intent to commit criminal or fraudulent activities. This intention may be revealed during discussions between client and lawyer or through actions or statements by either. It should also be noted that this exception does not cover communications about past criminal conduct or fraud schemes.
Though most states recognize a crime-fraud exception, its implementation varies significantly from state to state and even between federal courts. Evidence rules, statutes and court decisions all influence whether this privilege should be waived. Ultimately, whether its application should be waived will depend on each unique set of circumstances that arises in each individual case.
Some states have laws that explicitly authorize attorneys to reveal confidential information when it would help prevent death or serious injury to an individual. Furthermore, most attorneys have an ethical responsibility to disclose privileged data if it would help recover money lost due to crime or fraud committed by their client.
Corporate Clients
The attorney-client privilege provides clients with confidential communications between themselves and their attorneys, permitting frank discussions of sensitive topics and building trust between client and lawyer. Only the client holds this privilege; any waiver can only occur under certain conditions; this rule is especially important in corporate settings where multiple people may discuss matters with one attorney at once.
An example would be when a corporation is engaged in litigation against another entity and seeks the advice of outside counsel on its position in the matter. It is important to keep in mind that attorney-client privilege does not only extend to their legal counsel; rather it covers all officers, directors and employees within the corporate entity who advise their corporation in this matter.
Additionally, the attorney-client privilege applies to discussions of company finances and business affairs, including tax exposure or potential liabilities of an entity being advised. Such conversations must relate directly to its role within business operations as a whole as well as any specific issue on which advice is sought.
There are two primary circumstances that typically result in the violation of attorney-client privilege and work product protection, even without their intended release by clients. One is an attempt to selectively disclose documents and information favorable to one party in an ongoing legal dispute; this practice is known as subject matter waiver and prevents them from cherry picking materials to present a falsified image of facts in their case.
At times, court proceedings require making public communications or documents that have come to light through complaints or depositions. When considering whether the revelation was inadvertent or intentional, judges and juries take several factors into consideration before ruling on whether a waiver should apply – including how often such events happened in previous cases.
Untangling whether disclosure to third parties results in waiver can be complex and the law on this topic remains evolving, but New York courts generally consider each situation on its own facts and circumstances when determining if waiver has taken place.
Death of Client
The attorney-client privilege, one of the oldest evidentiary privileges recognized under common law, serves to facilitate candid dialogue between lawyers and clients that is essential to effective representation in legal proceedings. While its protections last indefinitely, they can be waived under certain circumstances.
When a client dies, it becomes important to determine how their estate should be represented at Surrogate’s Court proceedings. A few key principles can complicate this answer and complicate determining who represents which estate.
First, an executor or administrator of an estate may waive attorney-client privilege on behalf of their deceased client just as he or she could during life and in their capacity as clients themselves. Both the Second and Third Departments have held this to be true and recently joined in this opinion (See Matter of Thomas 2019 NY Slip Op 08293 (4th Dept Nov 15 2019).
Second, even when they are interested and may benefit from the proceeding, personal representatives can waive attorney-client privilege. According to the Fourth Department, doing so would prevent misappropriation of an asset created for deceased client and used against creditors and parties who may claim against it.
Attorney-client privilege can also be breached if a client divulges confidential information to non-lawyers outside of legal channels, such as speaking directly with language interpreters or disclosing it in any other setting.
Finally, client communications that are protected under attorney-client privilege may need to be disclosed in order to collect an unpaid fee or pursue legal malpractice against an ex-lawyer in order to preserve justice and restore order. In such instances, however, the personal representative can still invoke the crime-fraud exception in order to maintain attorney-client privilege – although such circumstances should be avoided if possible.
