Author: marcsherman

What is the Attorney-Client Privilege?

You have the right to have all of your communications with your Attorney, or prospective Attorney (yes, even before formally engaging them), be treated as confidential, whether regarding a legal matter for which you are seeking Attorney advice or involvement or discussion of matters for which the Attorney’s advice is helpful or necessary.

The Attorney-Client Privilege allows you to prevent disclosure of conversations, letters, e-mails, facsimiles and other forms of correspondence and communication between you and the Attorney and Law Firm staff representing or consulting you, in almost all circumstances. This information is held in confidence and should not be disclosed to others, except where you have directed the Law Firm to do so.

Why is this important?

The privacy of your confidential information, regardless of the form, has a value to you. Confidential information contains valuable, private information simply because it is non-public or possibly because it may be used against you if it becomes known by others. The law protects your right to limit disclosure of sensitive information, so that your discussions with your Attorney or prospective Attorney can be open and transparent.

Isn’t this just for litigation situations? No.

The Attorney-Client Privilege is important in a variety of contexts. Consider a new business or product idea that could be hijacked by others. Consider the timing and specifics of business plans and strategies you may be implementing. Consider your thoughts about actions against an employer or, on the flip side, the steps to be taken as an employer in dealing with the workers or vendors for your business. 

There are many, many reasons why protection of your communications with your Attorney and Attorney staff can and should be considered.

What do I specifically do?

Since the privilege is yours, you also have the power to maintain it and the authority to waive and forfeit the Attorney-Client Privilege.

Your own verbal communications with the Attorney or Attorney staff will usually be considered to be protected. However, whether as an individual or as an owner or employee of a business entity, be mindful of two things: You can lose or “waive” the Privilege if your private communications happen to include or happen even to be near others who are not within your protected circle and can see or hear your intended private information. Also, you can waive the Privilege if you are sharing or disclosing the contents of Attorney-Client protected communications with another who is not in a position to share the Privilege.  

If you are a business owner or management employee communicating with the business Attorney, keep in mind that circulating a privileged email, memo or the substance of the communication between you and the Attorney can later affect the ability of your business to prevent its use or disclosure.

Best practice: Start by protecting your privilege and your private information by doing the following:  

Include a header in written correspondence or the “regarding” line in your emails with your Attorney stating that the document or the information is expected to be part of an Attorney-Client Privileged Communication. Or, at a minimum, identify the communication as “Attorney-Client Communication” or similar words.

Of course, give thought to the persons that you join as recipients in the email or to whom you circulate your documents and correspondence. And, be thoughtful of where you are having your Attorney meetings or who is on the call or email chain with you.

And equally important, be sure that you are individually or for your business, keeping your eyes on the other available tools that you have under the Law for protecting your confidential information, trade secrets and the like.

If you are not sure, ask your Attorney. Marc Sherman can be reached at msherman@mshermanlaw.com for further explanation, if necessary.