1 September 2014
To understand the importance of the attorney-client
privilege, initially, one must understand what information a party is generally
entitled to during a lawsuit/litigation.
Generally, the other party is entitled to what you say to others about
the facts of the lawsuit. This needs to
sink in because people are used to the world where another person cannot get
information about communications they have with another unless someone tells
them. This is better known as the
secret. Well, in litigation, a party has
the right to compel (that means require them with the force of law) to divulge the
communications under what is called “Discovery” in a lawsuit. In Discovery, parties have to share
information, whether they like it or not, that is sought and reasonably
calculated to lead to the discovery of admissible evidence. Mass. R. Civ. P. 26(b)(1). (This means, in general, there are no secrets
and this is one reason why lawsuits are sometimes not filed.) So, if you blab to your best friend about the
lawsuit, generally, the other party gets to know what you said. This can be quite damaging to a party’s interests
in a lawsuit and there are an infinite amount of scenarios one can imagine
where disclosure can be damaging.
Now let’s turn to what the privilege is and what its
purpose is. The attorney-client
privilege is a legal right to withhold the content of communications between
people, in this case communications between an attorney and a client, which would
otherwise be discoverable. The privilege
only exists when there is: 1) a communication; 2) made between privileged
persons; 3) in confidence; 4) for the purpose of seeking, obtaining, or
providing legal assistance to the client.
On the federal level a similar formula for the attorney-client privilege
has been cited: 1) where legal advice of any kind is sought 2) from a
professional legal advisor in his capacity as such; 3) the communications
relating to that purpose; 4) made in confidence; 5) by the client; 6) are at
his instance permanently protected; 7) from disclosure by himself or by the legal
advisor; 8) except the protection be waived.
US v. Mass. Inst. of Tech., 129 F3d 681, 684 (1st Cir. 1997).
The purpose of the attorney-client privilege is simple, “it
encourages disclosures by client to lawyer that better enable the client to
conform his conduct to the requirements of the law and to present legitimate
claims or defenses when litigation arises.
Id. See Upjohn Co. v. US, 449 U.S. 383, 389-90 (1981). In layman terms, it allows a person to speak
to their attorney and obtain legal advice without the worry what is said will
be used against them.
The focus of this post is on waiver, which generally is
the intentional relinquishment of a right, and in the context of the
attorney-client privilege is doing something to give up the protection or not
doing something to ensure it exists (which should be referred to as forfeiture, but to conform to slippage in legal parlance we will continue to refer to it as waiver). One
way you can waive the privilege is simply to blab what you said to your attorney or what he
said to you, which is simple enough to understand. XYZ
Corp. v. US (In re Keeper of Records), 348 F.3d 16, 22 (1st Cir.
2003). So, don’t talk about a lawsuit
when you are involved in one at the cocktail party, at the gym, or at the water
cooler at work.
Another way one can possibly waive their attorney-client
privilege is to bring a third party into a meeting with your attorney. It is common for a person to bring a third
party to a meeting with an attorney without realizing or having any thought that
there could be a danger in doing so. It
should be understood, that the presence of the third party generally defeats
the attorney-client privilege. That
means, having a meeting with your lawyer with a third party present, the communications
are not protected. (This does not
include agents of the lawyer, like a paralegal of the law office.) There can be
exceptions found where the attorney-client privilege continues even when a
third party is in the meeting. US v.
Mass. Inst. of Tech., 129 F3d 681, 684 (1st Cir. 1997) (noting and citing
to other decisions ruling that information shared with “secretaries, interpreters,
counsel for a cooperating co-defendant, a parent present when a child consults
with a lawyer” were still privileged despite the presence of the third party); Deloury
v. Deloury, 22 Mass. App. Ct. 611, 613 fn.1 (1986) (noting presence of
grown daughter for “moral support” in contemplation of filing a divorce
proceeding did not waive attorney-client privilege).
The legal question appears to center around the client’s
intent that the communication was to be confidential, but that subjective
intent alone may not be found to be “sufficient.” US v. Mass. Inst. of Tech., 129 F3d
681, 684 (1st Cir. 1997). It appears to
the author from the case law that the question of whether the attorney-client
privilege is waived by the presence of a third party in a meeting with an
attorney is almost decided on a case-by-case basis because who “closely related
persons” are and whose presence is “vital” or “appropriate” to a consultation
can be debatable. Id.
Needless to say, the case law on the subject is mixed and
it is not always legally clear whether the presence of a third party will waive
the privilege. This means, instead of
creating an issue the other side can argue in its favor and taking the risk
that a court many months from a meeting with your attorney determines that the
attorney-client privilege does not exist because there was a third party in the
room, the safer move is to never enter a meeting with an attorney with any third
party present.
In the event that you are involved in a
lawsuit/litigation or are facing one and have concerns over the attorney-client
privilege or other concerns, feel free to give this office a call.
