Understanding attorneyclient privilege

There has been a lot of discussion in the news lately about attorney-client privilege. Many laypeople don’t understand its limitations. Most believe that any conversation between an attorney and client is privileged and can’t be discovered in either a civil or criminal action. That is simply not true. Only when an attorney and a client are discussing the attorney’s legal advice or strategy is the conversation privileged. Even that has some exceptions.

The attorney-client privilege is designed to allow free communication between an attorney and his or her client about a legal matter and the attorney’s advice concerning that matter. Just because the attorney and client have a discussion doesn’t mean that their conversation is privileged. Communications completely unrelated to anything for which the attorney has been hired, that portion of the conversation, and any related documents reviewed and retained are not privileged.

One of the landmark Supreme Court opinions on this subject states:

“The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and Ted Babbitt

Babbitt and Johnson, P.A. (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or

(ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been

(a) claimed and (b) not waived by the client does the privilege apply.”

So, for the attorney client privilege to apply there must be an attorney who is hired for advice, the conversation must relate to the matter for which the attorney was hired, there can’t be anyone present during the conversation who is not the client, and the client can’t be discussing the commission of fraud or the intent to commit a crime.

Theodore Babbitt is senior partner in the law firm of Babbitt & Johnson, P.A., and is a member of the Inner Circle of Advocates, which is limited to the top 100 personal injury lawyers in the United States.