What, Exactly, Is the Attorney-Client Privilege?
The attorney-client privilege in the United States is often defined by reference to the “5 Cs:” (1) a Communication (2) made in Confidence (3) between a Client (4) and Counsel (5) for the purpose of seeking or providing legal Counsel or advice.
- Virtually all types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege, including oral communications and documentary communications like emails, letters, or even text messages.
- The communication must be confidential. That means the communication is limited to the client and the lawyer. If anyone outside the attorney-client relationship receives the communication – for example, a close friend copied on an email to the lawyer – the privilege is lost. Even if such a communication is made in confidence, it loses the privilege. That is called “waiving” the privilege.
- The communication must be made by a client. A formal retainer agreement is not necessary. It’s enough for the individual to honestly believe he is consulting the lawyer for purposes of obtaining legal advice in advancing his own interests. A corporation can be a “client” too. In that case, the privilege protects communications between the company’s lawyer – whether an “in-house” lawyer employed by the company, like a general counsel, or “outside” counsel at a law firm – and the company’s employees so long as the communications fall within the scope of the employee’s duties.
- The client’s communications must be made to counsel – a lawyer. The privilege also covers a client’s communications with individuals who assist the lawyer in the representation, such as a paralegal or an investigator.
- Finally, the communications must be made for the purpose of seeking or providing legal counsel – legal advice. In the corporate context, that means a lawyer’s communications are not privileged when the lawyer is providing business advice.
The purpose of the attorney-client privilege is to promote open and frank communications between clients and their lawyers. To represent a client effectively, lawyers must have access to all relevant information concerning the representation. The attorney-client privilege recognizes that a client is more likely to provide a lawyer with all relevant information – even information that might be embarrassing or unpleasant to discuss – if those communications cannot be further disclosed without the client’s consent.
The privilege also ensures that lawyers can provide candid and frank legal advice to their clients. For example, a lawyer might be more circumspect in discussing whether a client’s course of conduct amounts to fraud if that conversation could be disclosed to prosecutorial authorities or a potential adversary in civil litigation.
The attorney-client privilege is a foundational component of the American legal system. Not only does its guarantee of confidentiality allow for better legal advice, it promotes compliance with the law by encouraging communication. A client in doubt about whether certain conduct is within the law is more apt to seek advice of counsel knowing that advice cannot be shared outside the attorney-client relationship.
Some might be surprised to learn that not all branches of government honor the attorney-client privilege. Congress, for example, has long asserted that the privilege is a judicial privilege that does apply to Congress. It has maintained that its members and its committees, through their investigative powers, could compel someone to disclose protected attorney-client communications. Nonetheless, Congress typically agrees not to demand privileged information so stand-offs related to the assertion of privilege before Congress are rare.
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