What?s covered, what?s not in attorney-client privilege

Imagine yourself in the executive lounge at Denver International Airport about to head out for a business trip. As your flight is announced, you leave a rushed, supposedly confidential voice mail for your attorney regarding your company?s pending litigation. Simple enough, right?

But is this message actually confidential? Or will you have to disclose this communication in court? This article addresses the basics of attorney-client communications and the privilege that protects them.

Defining privilege
The attorney-client privilege protects certain communications between attorney and client from forced disclosure. It is the oldest privilege protecting confidential communications, and the privilege, in some form, exists in every state.

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So what does the privilege cover? The attorney-client privilege protects confidential communications between attorney and client for the purpose of seeking legal advice. The privilege, if exercised properly, can be a valuable business asset as it allows full, candid discussion with counsel that, in turn, assists your counsel in providing effective business advice. Such advice, although usually thought of in the context of litigation, encompasses all legal advice, including that received in business transactions.

Understanding the contours of the privilege is very important in today?s business world. The privilege only protects actual communications between a client and attorney; for example, client identity is generally not considered a communication. The communication ? which can take many forms, including conversations, letters or e-mails ? must be made in confidence. In the crowded airport scenario, if eavesdroppers overhear the conversation, confidentiality may be destroyed. Confidentiality may be easily lost in cocktail party or casual elevator conversations. Without confidentiality, the privilege does not exist.

Additionally, the attorney-client privilege does not cover pre-existing documents. In other words, simply turning documents over to your attorney does not automatically protect the documents from disclosure. One may not gain the privilege by placing documents, whether confidential or not, in the attorney?s possession. That only works on TV.

Many larger businesses rely both on in-house lawyers and outside counsel for legal advice. Whether in-house or outside counsel is used, it is imperative that corporate officers and employees understand whose communications are privileged. Directors and officers of a corporation act as the client and are generally persons whose communications with counsel are privileged.

The attorney-client privilege may extend to lower-level corporate employees in certain circumstances. This added level of protection is particularly valuable to large companies with large operations, but keep in mind that not all employees are persons protected by the privilege. Businesses should ensure their employees know the company?s attorney is not necessarily the employee?s attorney.

What is nptions limit protection under the attorney-client privilege. A waiver, either intentional or inadvertent, destroys the privilege. Businesses should therefore make certain that appropriate systems are in place to prevent inadvertent disclosure of confidential communications.