Attorney-Client Privilege Overview

Understanding the Attorney-Client Privilege

The relationship between an attorney and a client has long been protected. The "attorney-client privilege," dates back to England in the 1500s and is intended to encourage clients to communicate freely when they are seeking legal advice.

The principle of attorney-client confidentiality is based on statutes and professional ethical rules that attorneys follow. It protects both oral and written communications.

In general, the attorney client-privilege allows you to disclose information without fear that the facts will become public or will be used against you. It extends to attorneys as well as legal assistants and paralegal professionals.

One 1950 court case is often used to explain the attorney-client privilege. In United States v. United Shoe Machinery Corp., the government charged the manufacturer with antitrust violations. The company argued that 800 items the government wanted to introduce were protected under the attorney-client privilege.

The U.S. District Court in Massachusetts stated the privilege applies only if:

The individual is a client of an attorney, or is seeking to become a client at the time information is disclosed.
The person connected to the communication is acting as an attorney and is a member of the bar of a court. (Communications with non-attorney business advisors and others are not protected.)
The communication is exclusively between the attorney and the client. If a third party, non-client (not working for the law firm) is included, the disclosure is likely to lose privilege.
The communication must occur for the purpose of securing legal advice, services, or assistance in a legal proceeding. It cannot be used for the purpose of committing a crime.
The privilege is claimed and not waived by the client.

The attorney-client privilege is available to individuals, as well as businesses, organizations and institutions. One significant Supreme Court case in 1981 (Upjohn Co. v. United States), ruled that a company's employees are protected in the context of an internal investigation.

The principle of attorney-client confidentiality is so sacred that in most cases, it even remains in effect after a client dies. In 1998, the Supreme Court refused to overturn posthumous confidentiality because its existence encourages clients to communicate "fully and frankly" with counsel."

Clients may be concerned about reputation, civil liability, or possible harm to friends or family," the court noted in Swidler & Berlin v. United States.‍

Despite its many protections, the attorney-client privilege does have some exceptions. For example, it does not apply if used to commit a crime or fraud.

This article only explains the basics of the attorney-client privilege. If you have questions about how the protection affects your situation, consult with your attorney.

Is E-Mail Sent by Employees Protected?

E-mail messages sent from a client to an attorney are generally privileged communication. However, a number of cases have ruled that when employees send messages from their work e-mail addresses or from devices owned by their employers, the attorney-client privilege is lost.

It's risky to send sensitive information to your attorney when your employer:

Owns the device that e-mails are sent from;
Monitors electronic messages in its systems; and
Informs employees of its policies.

As one court noted, sending a message over a company's e-mail system is "like placing a copy of that message in the company files." (Asia Global Crossing, Ltd., U.S. Bankruptcy, SDNY, 2005)

Best practice: Send communications to your attorney from a personal e-mail account, cell phone, computer, or other device. Refrain from using workplace devices or accounts.