Attorney-client privilege is almost universally regarded as one of the oldest (and strongest) legal protections in existence. As far back as Ancient Rome, the privilege has barred attorneys from testifying against their clients. However, the privilege is not absolute; while the exact details of attorney-client communications are protected, the existence of those communications and some details of the attorney-client relationship are often discoverable.
What is not protected by attorney-client privilege?
First of all, in order for the attorney-client privilege to exist at all, there must necessarily be an attorney-client relationship. Once a relationship is established (more on this shortly), the attorney-client privilege protects communications between an attorney and a client as long as the communications were made for the purpose of securing legal advice. The privilege does not protect the information being communicated, so that if a client tells his attorney that he is guilty of a crime, his guilt is not protected from discovery by other means. In other words, clients cannot prevent the disclosure of damaging facts simply by communicating those facts to their lawyers.
Of particular interest to corporations is how the attorney-client privilege applies to communications between officers or stockholders of the business and its corporate counsel. Corporations are legal entities, and an attorney representing a corporate client represents the corporate entity—not the corporation’s individual directors or officers. Executives often seek guidance from corporate counsel when legal issues confront their businesses. In this context, communications are protected by the attorney-client privilege. However, any communications related to the executive’s own personal legal affairs rather than the corporation’s are not privileged because the corporation, not the executive, is the client.
Common exceptions to the privilege
In any given scenario, it is ultimately the client that holds the privilege, and the client therefore also has the choice of when to waive the privilege or apply it. For a corporation, the current management controls the privilege. As with any rule, there are certain exceptions to the protection of the attorney-client privilege, including, for example:
- The privilege can be waived if the attorney and the client spoke in the presence of a third party.
- The privilege can be lifted in litigation concerning a deceased client’s estate.
- The privilege may be pierced by a corporation’s shareholders in certain circumstances, such as when otherwise privileged communication is determined to affect corporate control.
- The privilege does not apply because the client seeks the attorney’s advice for the purpose of furthering a crime or committing a fraud.
This list is certainly not comprehensive, and only one thing is certain when it comes to the attorney-client privilege: a good relationship with your lawyer can prevent costly and damaging mistakes. If you have questions about how far your protections extend, it’s best to consult with an experienced business lawyer before you have problems.
Max Julian is a partner at Gertsburg Licata in the litigation practice group. He may be reached at (216) 573-6000 or at [email protected].
Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.
