The attorney-client privilege is important to any lawsuit. But in some cases, the attorney-client privilege can be destroyed, either by design or by accident.
What is the attorney-client privilege? In general, it means confidential communication between a client and her lawyer cannot be used in court. The privilege generally covers legal advice and law-related discussions between a lawyer and a client, whether written or oral.
So what doesn't fit under the privilege, or can destroy the privilege altogether? Here are five scenarios to consider:
- Non-legal advice -- The attorney-client privilege generally does not apply when a communication discusses unrelated issues that have nothing to do with the law. Courts generally focus on the "primary purpose" of a communication to determine if it is privileged.
- Informed waiver -- One way to get the attorney-client privilege destroyed is by agreeing to waive the privilege. A waiver is often required to be in writing, and can't be undone. Government entities sometimes agree to waive the privilege to show they have nothing to hide, as happened recently with a school board in Ohio.
- Waiver by communication to a third party -- One of the most common ways to waive the privilege is to have a third party present at the time of the communication. Waiver also occurs when a client or lawyer later discloses privileged information to a third party. There are some exceptions: Language interpreters generally don't count, and a third party who is also the lawyer's client in the same matter may also keep the privilege intact.
- Failure to object -- This usually happens during the pretrial discovery phase, when both sides request documents and information. If privileged information is produced, and a party doesn't object in a timely manner, the privilege may be lost forever.
- Crime-fraud exception -- The attorney-client privilege generally doesn't apply when a lawyer and a client discuss ways to commit or perpetuate crime or fraud.
The attorney-client privilege isn't easily destroyed, but it's not uncommon for it to be challenged as a case proceeds. If you're in the midst of litigation, it may be a good idea to ask your lawyer precisely what's covered so you don't destroy the privilege by accident.
- Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver (Cornell University's Legal Information Institute)
- The Attorney-Client Privilege: Slicing The Lines of Distinction More Thinly (FindLaw)
- Children Lose Attorney-Client Privilege in CO Ad Litem Cases (FindLaw's Strategist)
- Church Confessions Admissible in Court? (FindLaw's Blotter)