Overview of the Attorney-Client Privilege
The attorney-client privilege encourages the client to openly confide with the attorney without fear of disclosure and makes it possible for the attorney to effectively advise the client.
Several parameters must be in place for the attorney-client privilege to be invoked; the information must be obtained in the form of a communication; the communication must be between or among persons who may invoke the privilege; and the intent of the communication must be meant to be confidential and for the purpose of seeking or providing legal advice.
What Information is Considered Privileged and Protected “Communications”
- The communication may be oral, written, electronic, or nonverbal.
- The communication itself is what is protected by the privilege, not the actual facts therein.
A client sends the attorney an email regarding a document that is the topic of the communication. The attorney may withhold the email, but not the actual documentation.
The attorney may have a conversation with a client to discuss a particular matter. The fact that the client shared the information is not privileged; however, the content of the conversation is if the privilege otherwise applies.
A final version of a document sent to a recipient would not be protected by privilege; however, the draft copies between the author and the attorney could be if the author had been seeking advice from the attorney.
- The communication is made with the intent that it be kept confidential. Generally, there cannot be a third party present, nor can the communication be disclosed to a third party.
- The communication is initiated for the purpose of obtaining legal advice. The attorney must also be acting in a legal capacity and not just present; for example, in a business meeting.
Persons Entitled to Invoke the Privilege
- All jurisdictions in the United States agree that the attorney-client privilege protects the communication from the client to the attorney. However, it does not always apply to the opposite; the communications between the attorney and their client may not be privileged.
- The privilege may also apply to the communications between the client and the attorney’s assistants, investigators, paralegals, etc. if they are working under the attorney’s direct supervision and the communication is made in the process of the client receiving legal advice.
- Communications between the General Counsel and another attorney or an expert retained by the attorney may be privileged.
Attorney-Client Privilege within the University Setting
- The General Counsel is primarily dedicated to advising and protecting the University, and communications by employees to the General Counsel may necessitate disclosure to other administrators or to outside counsel retained to represent or advise the University on a “need-to-know” basis.
- The General Counsel’s office also performs administrative and business functions for the University, so communications between the office and employees may not always be subject to attorney-client privilege, especially if the employee is not an administrator. Employees are encouraged to mark communications seeking legal advice “Privileged and Confidential” before sending it to our office. This will help assure its protection from compelled disclosure.