Speaker 1: I'm Drew Stevenson, and this is a video for my professional responsibility class. Here, I'm gonna be talking about the basic parameters of attorney-client privilege, when it applies and when it doesn't. Now, for my students, make sure that you keep straight the difference or distinction between attorney-client privilege and the duty of confidentiality. The ethical duty of confidentiality is about whether you could get in trouble with the bar and be subject to suspension or disbarment. Attorney-client privilege, in contrast, is really a rule about what's admissible at trial or what's discoverable during pretrial discovery. So in that sense, it's an evidentiary rule. You probably even cover attorney-client privilege a little bit in your evidence class, and it can be tested on both the MPRE and the multi-state bar exam as an evidence rule. So having said that, let's dive in. So traditionally, there are four basic elements that are required in order for attorney-client privilege to apply. We're talking about communications, not actions or events, between privileged persons, and by that, we typically mean the lawyer and the client, not third parties, not clients and not intermediaries in the conversation, that's held in confidence for the purpose of obtaining legal advice or legal representation, some sort of legal assistance for the client. By the way, there's a great section of the Restatement of the Law Governing Lawyers, section 68, that has a nice, very clear and very thorough discussion about attorney-client privilege and when it applies and when it doesn't. So let's unpack each of these four essential elements a little bit. So communication, and it's gonna be between a lawyer and a client, or they're intermediaries, that can be written or oral. So if it's written, that can apply to letters, emails, text messages, and so forth. Oral conversations can be in-person or by Zoom or over the phone, or it could be the lawyer's transcript or notes of the conversation, because it reveals the contents of what was said, that would still be privileged. Who's covered? Now, watch out for this, because a lot of non-lawyers misunderstand this. It applies to the client and prospective clients. And so the fact that the lawyer talks to some random person like a witness does not mean the conversation will necessarily be privileged. It does apply to prospective clients. And so if someone comes in for a consultation, even if they never pay you, or you never agree to represent them, you decide not to represent them at the end of the consultation, that conversation will still be covered under both the ethical duty of confidentiality and attorney-client privilege. So later on, nobody could like force you in a deposition to reveal what that person said to you, even though they were never your client, if they spoke to you in confidence, for the purpose of seeing if maybe they could get legal representation or legal advice, that conversation will be privileged. So watch out for that. And let's go back to our slides here. Note that a privilege can apply to agents of either side who are necessary to facilitate the communication. So we mean people like interpreters and translators and so forth, if they are necessary in order for the communication. Now, if they're not, then privilege won't apply to them. This means that the translation of a conversation or the translation of a letter between a client and a lawyer would also be privileged. Privilege can still apply, even if there are agents of the lawyer who are facilitating the representation and are therefore privy to the information in conversation. So secretaries, receptionists, law student interns, messengers and consultants. If you ask your secretary, please call the client and cancel my meeting today or relay that, tell them this information I found out or ask them a question, that it will still be privileged because the secretary works for the lawyer. Now, on the other hand, this usually doesn't apply for people that are merely working for your client, like the client's accountants, bankers, stockbrokers, financial advisors, consultants, PR firms and publicists and so forth. So if you ask your client for their financial records and they say, oh, I gave all that stuff to my accountant, please call my accountant and get the information, your conversation with the accountant won't be privileged. On the other hand, if your law firm has employees and accountant, your conversation with that accountant who's looking over your client's books or financial records will be privileged. So keep that straight. If you're calling somebody who is an outside vendor or a contractor for your client or most employees of your client, it won't be privileged. But if your client talks to someone who works for your firm, it probably will be privileged if it's about the representation. The conversation has to be in confidence. So, and our standard here is the people communicating have to reasonably believe that no one else can hear them or learn of it. This means that if your office is bugged or somebody has tapped your phone, even if they try to introduce that recording of the conversation between you and the client later, you could assert attorney-client privilege. On the other hand, if you have the conversation with other people present, it probably won't be privileged. So watch out for that. If you meet with a client privately and have a conversation, it will be privileged. But then if the two of you step into a crowded elevator and your client keeps talking to you about their legal issues, that conversation is not privileged because obviously there's a whole bunch of people around who can hear everything that's being said. Keep in mind that non-legal discussions are usually not covered by attorney-client privilege. So if it's not related to the representation, sometimes even parts of a conversation that are non-legal will not have privilege apply. So if your client starts telling you a personal anecdote or talking to you about politics or sports or the latest movie they saw, that won't be privileged, right? It has to be, we have to have the element that it's related to getting legal representation or legal advice. This comes up a lot in representing corporate clients, actually, because lawyers are often included in a meeting, let's say with the upper management, just in case someone has a legal question, but they never get around to legal subjects. So let's say you're in a meeting and there's a presentation by the marketing department about their latest ad campaign. And at the end of it, they turn to you and ask you what you think, not legally, but just whether you think it's gonna work or be successful, or if you're impressed. Well, they're asking for a non-legal opinion, so that's not privileged. If they ask for your opinion about a non-legal business or financial decision, the conversation is not privileged. Also, if they CC the lawyer on conversations between different managers of the corporate client, it doesn't magically make it privileged because they CC the lawyer on a conversation that otherwise isn't privileged. And in fact, including more people in an email thread usually makes it less likely to be covered by privilege. A lot of non-lawyers don't understand this. They think that if they CC the corporate counsel on the email that now it's privileged, well, it's probably not. Privilege does not apply to legal pre-existing documents, I'm sorry, or other tangible evidence like photographs and spreadsheets and so forth, even if they concern the same subject as the representation or a privileged conversation. So the fact that your client turns over to you at the beginning of their representation the last five or 10 years of their business records does not magically make those records privileged, right? Just because they gave them to their attorney, they are pre-existing documents. So privilege does not apply to those. If the client drafts a cover letter for you, or if you draft a response letter after reviewing those pre-existing documents, that communication is asking for legal advice, so it would be privileged, but the pre-existing documents themselves are not. Similarly, in routine documents like employee manuals that maybe the lawyer drafted or the lawyer reviewed, and now they've been circulated to all the employees and they're referred to on a day-to-day basis, well, that's not gonna be privileged because they're designed for the whole corporation's regular use. This is very important. I've seen this come up as test questions on the MPRE and other types of exams like that. Facts are not privileged, right? The events in the real world are not covered by attorney-client privilege, just the communication about it is. So who you're representing, who your client really is, if your client has been using a pseudonym, let's say, and then you're asked to disclose who they really are, right, or you've been saying you represent Mr. X or the Wizard of Oz, well, you can be forced to disclose who the real client is. Also, the fact that the client consulted with a lawyer, that fact happened in the real world, so that's not privileged. What was said in the conversation is privileged, but your client could be forced in a deposition to answer the question whether they talked to you about the matter at hand. Did you consult with your lawyer about this? So the general subject matter of the consultation, not privileged. What was said specifically, like what did your lawyer tell you, that is privileged. Who's paying the lawyer and how much, not privileged. The identity of third-party payers, details of retainer agreements and fee arrangements are not going to be privileged. If you get asked this, just keep that in mind, bright line rule. If your client could be asked to disclose how much they're paying their lawyer or how much they've paid in legal fees so far in the litigation, that's not covered by attorney-client privilege. The client's whereabouts. For example, there was a case where the trial was not going well and they took a recess for lunch. When they came back, the client had disappeared. They were in the process of fleeing the jurisdiction and the court asked the lawyer, where's your client? And the lawyer said, well, I'm not going to say because it's attorney-client privilege. Well, the judge reminded the lawyer, attorney-client privilege does not apply to where your client is. It may apply to what your client said, but if you know where your client is, that they're on Highway 90 or something like that, headed out of the jurisdiction, then that fact is not privileged. Keep that in mind. The restatement gives us nice little illustration to show that or highlight the difference between facts and the communication. So let's say your client is being deposed by opposing counsel before trial and opposing counsel says, and it's a traffic accident case, did you tell your lawyer that the light was red when you went through the intersection? Well, that's covered by attorney-client privilege because they're asking what they told you. But if they say, did you see that the light was red? That's not privileged. Even if they talk to you about it, they're asking about what happened in real life. What was the light red? Did you see that it was red? That's not covered by attorney-client privilege. It's a fact, not the conversation. These kind of boilerplate email disclaimers don't really work. You've probably seen these before. The information contained in this email is privileged and confidential, blah, blah, blah. A lot of law firms have their email software set up to automatically insert this into every email that goes out of the firm. The courts know that it does not magically make everything that's said in the email privileged just because this was tacked on the end of the email. So this usually doesn't work. It will be privileged if it meets the elements we talked about at the beginning of this video, not privileged if it doesn't. There's a longstanding common law exception to privilege for crime and fraud. So if you have been talking your client through how to launder money as part of their criminal enterprise, that's not gonna be, those conversations are not privileged and you or your client could be forced to disclose them or divulge them during an investigation. If they've used the lawyer's advice or legal services to commit a crime or fraud, attorney-client privilege won't apply anymore. And the same is true for the lawyer self-defense. So if your client sues you for legal malpractice and you need to defend yourself, you're probably gonna have to disclose some otherwise privileged information to explain what you did and what expectations you set between you and the client. The same is true if you have to sue your client for unpaid legal fees, you're probably gonna have to disclose some confidential information about what was said and what you agreed upon that you would do and how much you would be paid and when you would be paid and so forth. Those conversations, even though they were confidential and related to the representation and were privileged, there's no privilege here. Also remember when we talked about conflicts of interest in my course, conversations, if you are representing co-clients, multiple clients in the same matter, so co-plaintiffs or co-defendants, and they end up suing each other later on, the conversations that you had in that representation will not be privileged anymore. They'll still be privileged if someone else sues your clients, but not if they're suing each other. Watch out for a waiver. A lot of times attorney-client privilege gets undone because somebody waives it. So here's one. The mere presence of a third party in a conversation between a lawyer and client will usually cancel out attorney-client privilege, again, unless they are necessary to facilitate the conversation like an interpreter or a translator. So if your client brings their boyfriend or girlfriend to their consultation with the lawyer, the conversation will not be privileged. If you have a conversation with your client in front of a bunch of other people, it won't be privileged. The restatement gives this example of, let's say you're representing a client with relation to a suspicious stock sale, right? A questionable sale of some stocks, and the client so brings her stockbroker to the meeting with you. Well, if you're representing the client, but not the stockbroker, and then during the meeting, the client reveals some sensitive information, privilege is waived because of the presence of the stockbroker. And now notice if the lawyer brought an expert in stock sales from their firm, it would be privileged. Subsequent disclosure is a very common way that privilege gets waived. So privilege is waived if the client or the client's lawyer or another authorized agent voluntarily discloses the communication in a non-privileged communication. So let's say your client goes home from the consultation with you or a meeting with you, and they get on the phone and recount the whole conversation to their best friend. They have waived privilege for that conversation as a result. And so you should be aware of that. You should coach your clients. Don't repeat anything that we say to each other or communicate with each other by email. Don't show my emails to anyone and so forth because it waives attorney-client privilege if it's found out later that the client did make that type of disclosure. Okay, so let's move on and give another example. This type of waiver has to be voluntary, right? And so, and by voluntary, we don't mean that your client understands all the rules of attorney-client privilege or knows that they're waiving attorney-client privilege when they talk to their friends and acquaintances about what their lawyer told them. It just means that they made the statements voluntarily. So again, if there's a wiretap or you're tricked into making a disclosure, somebody breaks into your office or hacks your computer or something like that, privilege is not waived, right? If somebody's stealing your mail and intercepts some communications between you and your client, that's not a voluntary disclosure. So attorney-client privilege could still be asserted if someone tried to submit that information at trial. If you are making a disclosure to comply with a court order, so let's say during pretrial discovery, you object to something the other side asks because you think it's covered by privilege and the judge disagrees with you, you make the disclosure. And if on appeal, the appellate court says, boy, the judge was wrong, that really should have been covered by attorney-client privilege. And they remand the case for a new trial, we will reprivilege that information. Now, obviously the cat's out of the bag, the other side has heard it, but they won't be able to admit that evidence at trial. Now, if the disclosure is to a privileged person, it doesn't waive privilege. So for example, if your client shows a letter from the lawyer to their spouse, because we have a spousal privilege, it doesn't defeat attorney-client privilege. So because we, both people, everybody in the communication is still privileged. Or let's say your client goes and talks to another lawyer, either for a second opinion about their case, or you did their trial and now they're talking to an appellate lawyer and they need to recount some things that you told them when you were representing them at trial. Well, they now have attorney-client privilege for the second conversation. So the first conversation is not waived. On the other hand, privilege probably will be waived if your client puts the conversation at issue at trial. The most common way is your client is trying to defend themselves against criminal or civil liability by saying, but I acted on the advice of counsel. I talked to my lawyer and was assured that what I was doing was legal. Well, if they bring it up, they can't turn around and say, but I'm not gonna tell you what my lawyer told me because it's attorney-client privilege. If they put the conversation at issue in their case at trial, then they have now waived attorney-client privilege and could be required to disclose the whole thing. And that concludes our lecture, introductory lecture about attorney-client privilege. There's a follow-up video to this about the biggest U.S. Supreme Court case in this area, the Upjohn case, sort of a landmark decision that every lawyer should at least be a little bit aware of. And so make sure you watch that video as well.