When Is Something Legally Privileged

However, the privileged status of the communication ends when – or when – the communication is shared with a third party who is not part of the protected relationship. However, a person who is an agent of the recipient of the information – for example, the secretary of an accountant or the nurse of a physician – is generally not considered a third party who threatens the privileged status of communication. Since privilege is held by the client, not the lawyer, the client has the ultimate authority to invoke or waive it.24 If the client is a business, privilege is generally considered a matter of control of the business. In other words, management or the “control group,” including officers and directors, decides whether to assert or waive the privilege.25 In the event of a change in control of the corporation, ownership of the privilege passes to successors; it does not fall under the former management.26 The lack of protection generally extends to suspected cases of abuse of children or other vulnerable persons such as the elderly or disabled. Even between spouses, privileged communication does not normally apply in cases involving harm or threat of harm to a spouse or children in the care of the couple, or crimes committed jointly with the other spouse. Unfortunately, it is not always so clear when an attorney-client relationship exists. Let`s say Sally Smith contacts David Jones, a lawyer, by phone. During the conversation, Smith Jones explained that it was involved in a dispute with the Internal Revenue Service over a tax-saving agreement designed for specific business purposes. She reveals important facts and very sensitive information during the conversation, then asks Jones for his legal opinion. Is the content of this conversation privileged? That depends. What happens if the communication is passed on to third parties after a privileged exchange between lawyer and client? Has the privilege been waived? Maybe. Unlike a client`s constitutional rights, which can only be waived intentionally and knowingly, solicitor-client privilege can be waived by negligent, unintentional or accidental disclosure.27 The issue of waiver most often arises when a communication is observed by a third party or when the client does not intend the communication to be confidential.

The mere presence of a third party is likely to prevent the creation of professional secrecy. While your intellectual property attorney can give you good advice, your communications with them will be vulnerable to disclosure if you are ever involved in litigation, unless they are legal counsel within the meaning of the law. It is also important to note that communication with your patent attorney is only preferred when it comes to intellectual property advice. If your patent attorney is not also a lawyer admitted to the Bar, advice on non-intellectual property matters (e.g. commercial litigation or litigation) will not be preferred. One of these rights is solicitor-client privilege. It is a privilege that belongs to the client (not the lawyer) in a client-lawyer relationship. It does not apply to consultants who are not legally qualified.

[4] Therefore, only the customer can do without it. In the law of England and Wales, solicitor-client privilege is divided into two types: advisory privilege and litigation privilege, the former being more absolute and defined more broadly than the latter. In addition to solicitor-client privilege and conversations with medical professionals and religious leaders, privileged communication includes that between two spouses, accountants and clients and, in some states, between journalists and their sources. Not all elements of the client relationship are protected by or contained in solicitor-client privilege. For example, the existence of the client relationship or the duration of the relationship is not privileged information.32 In fact, the general nature of the services provided by the lawyer, including the manner in which they are retained, is generally traceable. The actual circumstances of the communication between a lawyer and a client, such as the date of the communication and the identity of the persons copied in the correspondence, are also not privileged. Participants in a conversation with a lawyer, length of a consultation, and supporting documents (e.g. calendars, appointment books) are not necessarily protected from forced disclosure.33 With respect to a fee agreement between a lawyer and a client, these documents can usually be discovered unless such communication would result in confidential communication with the client.34 Lawyers are required to keep all information about a client confidential. the advance and the client`s transactions and business acquired in the context of the professional relationship. [1] This obligation exists indefinitely, even if the person is no longer a client of the lawyer. [2] However, a lawyer may be required to disclose a client`s confidential information in certain circumstances, such as when ordered to do so by the court.

However, privileged information can only be disclosed if the privilege has been revoked. This is particularly important in litigation. A party must disclose confidential documents to the other party, at least to some extent, if they are to rely on them, but they are not required to disclose correspondence with their lawyer (which could expose vulnerabilities in their case). A final consideration arises with regard to in-house counsel. Communication on corporate matters between a corporation`s in-house counsel and the corporation`s external counsel is normally subject to privilege.16 However, if the communication is between a representative of the corporation and in-house counsel, the distinction is less clear. Because in-house counsel often wear multiple hats, courts find it difficult to apply privilege.17 The privilege would extend to all legal advice, but does not protect purely commercial communications.18 Problems arise when communications include both legal and business advice, and courts take different approaches to deciding that: whether or not the privilege should be applied. At the very least, it appears that the court will first try to determine what role the in-house lawyer plays within the company – that of a lawyer or that of a business manager. From there, many courts will review the content of the communication, and this review will lead to different results.19 Therefore, in-house counsel should be careful to separate their legal advice from their business opinions.

In this article, I explain what a privilege is and when it is appropriate, and suggest ways to protect against accidental waiver of privileges. Although solicitor-client privilege is firmly established as a legal doctrine that protects confidential communications between lawyers and their clients, its application is not absolute. The circumstances of the communication, its content and even subsequent actions related to the privileged communication must be carefully weighed in order to preserve the integrity of the privilege. Even disclosure by one of the parties comes with legal restrictions. However, there are exceptions that can invalidate a privileged communication relationship. There are also various circumstances in which privileged communication can be deleted, intentionally or unintentionally. The frequently cited relationships in which there is privileged communication are those between the lawyer and the client, the doctor – or therapist – and the patient, and the priest and the parishioner. Solicitor-client privilege is a legal concept that protects communication between a client and his or her lawyer and maintains the confidentiality of communications in civil and criminal cases. This privilege promotes open and honest communication between clients and lawyers. However, in the United States, not all state courts consider lawyers` communications to be confidential. For example, Washington State law and federal courts when applying federal law only protect customer communications; Solicitor`s communications are protected as privileged only to the extent that they contain or disclose the client`s communications.

[ref. In contrast, California law protects confidential attorney communications, whether they contain, reference, or disclose the client`s communications.