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Examining Ethics: Some comments on the attorney-client privilege

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Donald Smith

Many of us have read and heard more about the attorney-client privilege in recent weeks than we did in law school — and it has certainly been more interesting. With so many recent reports in the press and on television discussing various aspects of the attorney-client privilege, not to mention search warrants, Special Masters and privilege logs, an overview on the subject might be helpful. This is a high-level review; each of the issues mentioned would require a separate article to provide a complete explanation.

“Privileged evidence” is specific evidence that may not be used in a civil or criminal case and, therefore, may not be obtained as part of a criminal investigation (cross-reference: Michael Cohen’s books and records) or, on occasion, as part of discovery in a civil case. Although we tend to think of the privilege in terms of testimony, the privileged evidence may also be documents or objects.

The attorney-client privilege is the oldest common-law evidentiary privilege we have, but it is just one of many privileges that New York recognizes. For example, we have a privilege for communications with health care professionals, clergy, journalists and newscasters. We have a spousal communication privilege, a state and military secret privilege and a political vote privilege (New York Constitution, Art. 2, section 7: “… provided that secrecy in voting be preserved”). And, of course, we have the privilege against self-incrimination.

Why do we have the attorney-client privilege? How can one justify impeding the truth-seeking function of courts by withholding relevant evidence? New York’s highest court has said that the purpose of the privilege is to permit a client to discuss sensitive matters with a lawyer without fear of legal injury or embarrassment from disclosure. The attorney-client privilege thus promotes free and open communication between attorney and client, which is vital to effective legal representation. In other words, the privilege is justified by public policy.

What is protected by the attorney-client privilege? The law protects (1) confidential communications (2) between an attorney and client (3) that are made in confidence (4) for the purpose of receiving or giving legal advice or services (see generally Ambac Assurance Corp. v Countrywide Home Loans, Inc., 27 NY3d 616 [2016]). Each of the four elements is discussed below, and each must be met in order to claim the privilege.

  • The communication must be of a confidential nature and may be oral or written (in one case, it was a tape recording), but not everything said to a lawyer is privileged. For example, the underlying facts of an incident are not privileged, and a document (g., an investigative report) does not become privileged just because it is delivered to a lawyer.

The confidential communication can be from the client to the lawyer, or it can be advice given by the lawyer to the client.

  • The “client” is the person or entity seeking legal services. One need not pay a legal fee in order to be determined to be a client, but paying a fee for someone else does not make the person who pays a client. If the client is a corporation, special analysis is required to determine if the specific communication is privileged. A court will consider such facts as the lawyer’s position in the corporation, the purpose of the communication and other matters that are well beyond the scope of this article.

The lawyer must be admitted to practice law, not just authorized to practice before an administrative agency.

The privilege protects the client’s confidential communications to the lawyer, to the lawyer’s employees and, in some situations, to experts retained by the lawyer on the client’s behalf.

  • The communication must be made in confidence, which means with the intent and reasonable expectation that it will not be disclosed to unauthorized third parties. For example, if a friend attended an attorney-client meeting, the privilege would not attach to any communications. Nor would the privilege apply to a client’s email communications with counsel that were on an email account used regularly by the client’s adult children with the client’s knowledge.

One exception to the requirement that the communication not be made in the presence of a third party is the “common interest exception,” which means generally that the client and a third party have a common interest and that the communications are in connection with or in pursuit of that common interest.

  • The communication must be for the purpose of receiving or giving legal advice or services. This requirement is not satisfied if, for example, the communication is made merely to apprise a corporation’s lawyer of general business activities.

Two exceptions to the privilege have been in the news recently. The first is that the identity of a client, and even the fee arrangement, might not be privileged, although there could be a situation in which the limited nature of the lawyer’s practice (e.g., bankruptcy) justifies protecting the client’s identity.

The other exception that has received attention recently is the crime-fraud exception. Clearly, no public policy favors the protection of communications relating to the planning of a future crime or fraud. The crime-fraud exception also applies to ongoing crimes, such as back-dating documents as part of a scheme to create a defense against a pending criminal charge.

A final point to note is that a lawyer’s ethical obligation to protect confidential communications applies at all times, whereas the attorney-client privilege applies when the lawyer is being compelled to disclose information.

Donald Smith is a lawyer whose practice is concentrated in business and litigation matters. His office is located in Powder Mill Office Park, Pittsford.

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