Myriad limitations regulate attorney-client privilege
In the wake of the FBI search of Michael Cohen’s office, a great deal has been said and written about lawyerclient privilege.
For some reason, the subject makes some people think of religion. William Brangham of PBS’s “NewsHour” described the privilege as “an incredibly sacrosanct part of American law.” Retired professor Alan Dershowitz went on about the “sacred materials” protected by the privilege.
It feels a bit flattering to be talked about in such exalted terms, but modesty requires me to admit, on behalf of my professional colleagues, that we’re not all gods, strictly speaking. The things we lawyers do in our professional lives don’t necessarily count as holy. At the risk of being just a little deflating, the lawyer-client privilege is, fundamentally, a rule of evidence.
New Mexico has many dozens of rules of evidence, most compiled into a single document by the Supreme Court and a few others scattered across our statutes. One of them establishes the general rule that relevant evidence is admissible at trial — lawyer-speak for “the jury gets to hear it.” The rest carve out exceptions to that general rule, meaning “the jury doesn’t get to hear it.” A particularly large category of excluded evidence consists of privileged communications. To say that a communication is “privileged” in this context simply means that it may not be used as evidence at trial, absent a waiver of some kind.
Privileged materials are also exempt from discovery, the pretrial exchange of information between the parties. When you’re caught up in litigation, you’re required to spill a lot of beans, but you’re allowed to keep a few back. When the word “privilege” is used in connection with litigation, it describes the zone of secrecy to which each litigant is entitled.
The lawyer-client privilege exists “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice,” according to the Supreme Court. In practical terms, a lawyer needs to know the bad as well as the good about a client’s case. The lawyer absolutely needs to know the client’s vulnerabilities, so as to be able to devise a strategy that protects the client from harm. And so it’s important that the client feel safe disclosing everything, in full confidence that the other side will never hear any of it.
That statement of the privilege’s purpose implies its most important limitations. First, the privilege exists only if a lawyer-client relationship exists. It’s not enough that one party to a conversation has a J.D. degree. There must be some kind of agreement that the lawyer will represent the client in the matter under discussion.
Second, the privilege covers only confidences, and only so long as they remain confidential. A statement made during a meeting attended by outsiders isn’t privileged. An email that might have been privileged when first sent can lose the privilege when it is forwarded to a third party. Loose talk in a public setting can likewise operate as a waiver. Only secrets are privileged.
Third, the communication must relate to legal services. If the talk is on any other topic, it falls outside the privilege. An employee with a J.D. degree might be involved in every aspect of running a business, but only communications pertaining specifically to legal issues will even arguably be privileged.
The privilege belongs to the client, not the attorney. The attorney has a duty to stay mum but the client can always choose to blab. But beware! Generally speaking, there’s no
such thing as a partial disclosure. The client can’t lift just one corner of the rug. Any disclosure generally operates as a waiver of the privilege with regard to the entire topic.
In criminal cases, all of this is complicated when police unilaterally seize evidence, as opposed to the mutual exchange of civil discovery. Moreover, the Sixth Amendment grants criminal suspects a right to counsel, which implies a right to confidential consultation. Civil litigation is simpler.
In New Mexico, even when all the other elements are established, there’s no lawyer-client privilege in various specified circumstances, as when two or more clients share a lawyer and then fall out among themselves. When joint clients start suing each other, their mutual lawyer may be compelled to disclose all sorts of confidences. And if the client sues the lawyer for malpractice, the gloves are off, baby. Finally, there’s no privilege when legal assistance is sought for the purpose of committing a crime or fraud. By the time we reach this low point, we’ve left the sacred far behind.
Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal. column.tips@gmail.com