Attorney-Client Privilege: What are the real implications in civil litigation?
Most people have at least heard of the Attorney-Client Privilege. It is often used as an element of conflict in crime dramas and novels; though often exaggerated in the theater, the Attorney-Client Privilege is very real and binding. Questions arise when the parties, meaning the attorney and the client, have differing definitions and, therefore, expectations of the privilege.
If you believe everything you see on television, you may think that just talking to an attorney about your situation entitles you to a relationship, when, in fact, that is not the case. Legitimate attorney-client privilege, as acknowledged by the courts, must meet certain standards. Furthermore, the legal ethics rules vary by state and jurisdiction.
The rule in Virginia is governed by common law, but generally speaking, attorney-client privilege is not in force until there is an attorney-client relationship. This relationship must be established and understood either by conversation or in writing. A typical conversation would include the following elements: the client requests legal advice; the attorney and client discuss payment terms; the attorney and client discuss next steps (whether that is strategy or simply making an appointment). Additionally, if the attorney makes an appearance on behalf of the client, a relationship is established with or without discussions of payment terms or strategy.
For example, if you are at a backyard barbeque chatting with your neighbor, who is an attorney, about the details of a real estate investment you’re considering, you probably do not have the protection of attorney client privilege. This is a situation where two neighbors are just making conversation. As such, the conversation could feasibly be admissible in a civil trial. However, if you asked your neighbor confidentially for legal advice regarding the transaction, and you discussed a proposed fee structure; then, you could reasonably assume that the relationship falls under attorney-client privilege.
The attorney-client privilege refers to an evidentiary concept, meaning an attorney cannot be compelled to disclose confidential communication. Furthermore, the client cannot generally be compelled to disclose the nature of communications with his attorney. This is somewhat different from an attorney’s duty of confidentiality (Model Rule 1.6: Confidentiality of Information) which states that a lawyer shall not reveal information about the representation of a client unless the client gives informed consent (rule 1.6(a)). In Virginia, our rules governing privileged communications are determined by the common (case) law. Additionally, an attorney should make every effort to ensure the security of the client’s information by taking measures to prevent unauthorized disclosure or access to confidential information (rule 1.6 (c)).
There are, of course, some exceptions to the confidentiality rule. The big ones that are usually exploited in Hollywood are as follows: to prevent death or bodily harm, to prevent a crime that will injure another’s property or finances, to obtain ethics advice, to establish a defense on behalf of the lawyer, to comply with a court order, or to resolve conflicts of interest related to a lawyer’s change of employment. These are all instances when the attorney uses best judgment.
All of the above information is in-line with common ideas about confidentiality and privilege. However, most clients are surprised to find out that confidentiality is forfeited the moment an unnecessary third party is privy to the communication. For instance, using the barbeque example above, if a third neighbor is included in the conversation about your real-estate transaction, the conversation is then, not considered confidential or privileged. This distinction of presumed confidentiality becomes an issue most often when a client wants to have a friend at a legal meeting for moral support. The friend is an unnecessary third party; therefore, the meeting would not be considered confidential. Please keep this in mind when scheduling any confidential conversations. You also avoid including third parties in your other forms of correspondence (example: email) with your attorney.
If you are ever in doubt about whether your conversations are confidential or not, feel free to ask your attorney. These rules are in place to protect clients and foster a safe environment that encourages truthful attorney-client relationships.