A Primer on Attorney-Client Privilege: Part 1 By Charles A. Weiss When I give talks on attorney-client privilege, I start by holding up the book I purchased about 20 years ago: a single volume of about 250 pages. Then I hold up the current edition: two volumes with more than 600 pages. This makes two points. First, I cannot even begin to cover the topic of "attorney-client privilege" in my talk. Second, the law in this area is rapidly increasing in complexity, so what you learned a few years ago may not be applicable today. That being the case, why bother with this article? Much like the standard exams given in U.S. law schools, the answer is "issue spotting." Certain problems concerning attorney-client privilege come up repeatedly, and being able to spot them adds value even if the ultimate answers may not be clear. Stated differently, being able to identify and spot recurrent problems affords the best chance of avoiding or mitigating them. This article is the first of a series. It presents the basic rule, and examines two common problems that can negate what is believed to be the protection of privilege. This article addresses two problems seen commonly in the case of corporate clients. The first concerns the role of intermediaries or advisors who are involved in a substantive but informal manner in the company's communications with its lawyers. The second concerns the distinction between legal advice and business advice, and the issues created by lawyers who wear two hats (legal and business). The next article will examine the problem of cross-border privilege, such as how a U.S. court applies attorneyclient privilege in the case of a non-U.S. lawyer advising a client on matters that span international borders.
THE BASIC RULE OF PRIVILEGE Three elements must be satisfied for attorney-client privilege to attach to communications. Specifically, privilege applies to communications 1) between a lawyer and client, 2) in confidence, 3) for the purpose of requesting or receiving legal advice. Some add a fourth element, which is 4) the privilege has not been waived, but we prefer to treat that as an event that destroys privilege that previously existed (as opposed to an element that is necessary for privilege to attach in the first place). As with many legal rules in the U.S., the rules of privilege are primarily governed by state law, meaning that, in most case, there is not a uniform national rule. With the caveat that nuances vary from state to state, the issues addressed in this article are generally applicable throughout U.S. jurisdictions.
COMMUNICATIONS WITH INTERMEDIARIES OR ADVISORS Business entities, such as corporations or limited liability companies, can act and communicate only through human beings. To state the obvious, a corporation cannot itself talk on the phone, attend a meeting or engage in correspondence. It is, nevertheless, recognized legally as a "person" that can engage attorneys and enjoy the benefits of attorney-client privilege. In recognition that a corporation can act only through its agents, communications between a corporation's attorney and the corporation's personnel are protected by attorneyclient privilege even though the personnel themselves are not the attorney's clients. In the simple case, a company's attorney-client communications occur between the company's lawyer and its directors, officers, executives or managers who have sufficient authority to direct the company's affairs. There Copyright Š 2021 Holland & Knight LLP All Rights Reserved
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