Understanding Attorney-Client Privilege
When you retain a licensed attorney, you generally have the right to refuse to disclose all “confidential communications” between you and your attorney. You also have the right to prevent others from disclosing confidential communications. In US law, this is known as the attorney-client privilege.
Extension of Privilege to Others
If your attorney delegates responsibilities to others, the privilege usually extends to these people. This is true even if they aren’t licensed attorneys. Also, the privilege generally extends to communications between your employees and your attorney. To be enforceable, there should be a written agreement between the attorney and those working under his or her supervision.
Limitations: When Does Attorney-Client Privilege Not Apply
The scope of “confidential communications” protected by attorney-client privilege isn’t as broad as you might think:
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Work Product: Documents and other written materials your attorney produces (“work product”) aren’t generally privileged unless prepared “in anticipation of litigation.”
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Third-Party Direction: The privilege doesn’t extend to work your attorney does at the direction of another person (e.g., an accountant).
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Non-Legal Roles: If your attorney is acting in a non-legal capacity (e.g., providing investment advice), the privilege generally doesn’t apply.
There are also important differences between the states in the scope of protected communications. California law, for instance, has a more expansive interpretation of confidentiality than virtually any other state.
How to Avoid Waiving Attorney-Client Privilege
Unfortunately, it’s easy to waive attorney-client privilege in a number of situations:
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Disclosure to Others: If you disclose information that your attorney conveyed to you in confidence, or that you conveyed to your attorney.
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Third-Party Participation: If someone who isn’t a client, employer, or under contract to the attorney participates in a conversation between you and your attorney.
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Tax Planning: If your engagement with an attorney involves tax planning, especially if construed by the IRS as a tax shelter.
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Written Communications: If written communications to and from your attorney don’t contain a statement stipulating that they are confidential and subject to attorney-client privilege.
Special Considerations
Finally: discussions with an attorney someone else is paying for (e.g., your employer) aren’t always protected. In any kind of investigation by your employer or a government agency, hire your own attorney. Don’t rely on the “free” advice provided by an attorney employed by your own company.
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