Speaker 1: This is part one of our video lectures about attorney-client privilege. In this video, we're going to be talking about the basics, the basic elements and doctrines that you should be aware of to understand attorney-client privilege. Now, for my students, I want to mention something about attorney-client privilege. First, make sure that you're kind of clear on the overlap and the distinctions between attorney-client privilege and the ethical duty of confidentiality, even though they both relate to keeping quiet about things for your client's sake. They do have some differences and are different types of rules. Secondly, attorney-client privilege matters because it's not only tested on the MPRE, it's also an MBE subject because it's part of evidence. And so you could encounter this on the bar exam and it comes up a lot in practice in real life if you're a litigator. So it's something that you should be familiar with. Okay, so we have four basic elements that make something privileged or for a privileged communication. It has to be a communication, right? This doesn't apply to actions or facts or event. There's no privileged event. It has to be between privileged persons. And normally, we're talking about the client and the lawyer, but we'll go into this a little bit more in a moment. It has to be in confidence and for the purpose of obtaining or providing legal assistance for the client. By the way, I'm going to have some citations to the restatement of the law governing lawyers here. I would recommend my students, if you really want to grasp this, that you do at least a once through quick read of the restatement sections about privilege in the law governing lawyers section. So make sure you know these four elements. Attorney-client privilege applies to a communication that can be written or oral, made between privileged persons. It has to be only going to apply if the communication is between certain parties. It has to be a confidential communication, so not public, and specifically for the purpose of obtaining or providing legal assistance for the client. And so if it was not for the purpose of obtaining legal counsel, then it won't apply. Now, having said that, I want to say something really quickly. Hollywood scriptwriters seem to have gotten it in their heads that money needs to change hands in order for attorney-client privilege to apply. So there's scenes in The Breaking Bad and The Better Call Saul and other lawyer shows where somebody gives the lawyer a dollar or the lawyer says, give me a dollar, and now our conversation is privileged. That's not a thing. Attorney-client privilege can apply even if you haven't agreed to represent someone. If they're talking to a lawyer for the sake of obtaining legal representation or legal advice, attorney-client privilege already attaches. Okay, let's go back to our slides. So let's talk about the definition of each of these four elements. Communication can be any expression through which a privileged person undertakes to convey information to another privileged person, and any document or other record revealing such an expression. So we're talking about emails can be privileged, written documents or printed documents can be privileged, oral conversations, and also recordings of oral conversations. Anything that's preserves the content of the privileged conversation can be protected by attorney-client privilege. This includes records of privileged communications made immediately after the fact. So privilege applies both to communications when made and to confidential records of such communications, such as a lawyer's notes of the conversation. So you answer the phone, it's your client, you have a private conversation with your client, and you have a private conversation with a private conversation with your client, then you sit down and take some notes, and they could be handwritten or a voice recording memo or a typewritten memo to your file. Your notes of the conversation, because they record the contents of the conversation, will be privileged. So confidential communications by a lawyer to a client are also protected. So make sure that's a very basic thing. It's both ways. What the lawyer says to the client is privileged, what the client says to the lawyer is privileged, and that includes a record of privileged communication, such as a memorandum to a file or reporting to another lawyer what was said. Now, who's privileged persons? Watch out for this. It definitely includes the client and or even a prospective client who you decide not to represent. You don't represent them because they balk at your fees and storm out of your office. It could be because you don't want to do that kind of law or you have a conflict or whatever it is. But prospective clients or full-fledged clients, the lawyer obviously, and then direct agents for the sake of communication of either one. An agent who's there to facilitate communications between them, agents of the lawyer who facilitate the representation. To give a couple of quick examples, if your client calls your office and you're not there and leaves a message with your secretary or receptionist to give to you and says, this is for the lawyer, that person, for purposes of privilege, is you. They're just passing a message through to you as your agent, and it's an agreed upon arrangement already. And the same if you try to call your client and you get their secretary on the phone instead and say, please tell my client, just give a quick message to my client. He should not go to the airport or do not go to court today or something like that. And that will still be privileged because it's communicating with their agent. The other two examples you should know about are using foreign language interpreters. So if there's an interpreter, it will still be privileged, even though the conversation went through another person. Or if you are representing a minor child and you need to have one or both of their parents there for the conversation. Okay. Agents of the lawyer. Privilege applies to representatives of the client, as I said, and or the attorney, but only if they facilitate the rendition of legal advice by the attorney. And so this is pretty narrow and specific. So clerical administrative employees, secretaries, receptionists, law clerks, and messengers would apply to this. This does not mean that everybody who works for you, if they talk to your client, that it's necessarily privileged or that everybody who works for the client. We're going to get to that in later slides. It could also apply to an accountant, as I said, translators, experts, and consultants, but be careful because sometimes it doesn't. Okay. What do we mean by confidence? Communication is in confidence if at the time and in the circumstance of the communication, the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person. In other words, what do we mean? We mean that the people having the conversation reasonably believed that it was a private conversation. So just to make sure you understand, just to make sure you understand, if you get into a crowded elevator with your client and your client turns to you and starts talking about their case, it's not reasonable for you to think that that's a confidential conversation because there's other people right there who can't get away from hearing you. And the same could apply to loud phone conversation that you have, like when you're sitting on an airplane on the tarmac or something like that. So be careful about that. On the other hand, if somebody has tapped your phones, put a wiretap, bugged your office, or is otherwise eavesdropping, attorney-client privilege will generally still apply because you, in good faith, thought that this was a private conversation and you had no idea that your office was bugged or that your client's office was bugged. So bugging an office or doing some sort of covert surveillance will not undermine privilege. Now let's talk about our fourth element. Legal assistance is the object of the communication. So communication is made to or assist a person who, one, was a lawyer or who the client or prospective client reasonably believes to be a lawyer. So, by the way, privilege will still apply even if you haven't told your client that your license was suspended. If it's reasonable for them to think you're a lawyer, you always were a lawyer, and they don't know that your license has lapsed or been suspended and they tell you something hoping to get legal advice, it will still be privileged. And the client has to consult the person for the purpose of obtaining legal assistance. Now please keep in mind that if you go playing golf with your client just to kind of bond with them or to get to know them, and they begin to regale you with stories of all their vices and sexual conquests or how intoxicated they got the previous weekend and things like that, none of that is going to be privileged because they're not talking. The fact that you're talking to a lawyer doesn't make it privileged. It's talking to a lawyer with a legal question to either to obtain representation or to obtain advice. Okay, how long does this last forever even after the client dies? So, unless it's waived or subject to an exception, and those are going to be two other videos, the attorney-client privilege may be invoked at any time during or after the termination of the relationship. And so, even if the client fires you, even if you quit, privilege still applies to the conversations that you had while the representation was going on. And this applies even after the death of the client. So, the death of the client does not defeat the privilege. Now, watch out for waiver. I'm going to have to do a whole separate video lecture about waiver, but I do want you to know that most of the test questions that come up are going to be about whether privilege was waived. So, for law school questions, your evidence exam, a lot of professional responsibility test questions, and MPRE questions are going to present you with the different scenarios that basically functionally waive privilege. And so, we call this waiver, and there's a whole set of other rules about that. But watch out, because that functionally is an element that even though we have in our four elements to create privilege, waiver erases all of those. So, watch out for that. And that concludes our first lecture.