But Isn’t That Privileged?
Many people assume that whatever they tell a lawyer is privileged, and is protected from disclosure for any purpose. However, the attorney-client privilege is not nearly as broad as many people believe. Knowing what is (and what is not) privileged can often be the difference between winning and losing a lawsuit.
THE TEST FOR PRIVILEGE
North Carolina courts recognize a five-part test for determining whether the privilege applies to a given communication.1 In order to be privileged, a communication must meet the following criteria:
An attorney-client relationship must exist at the time the communication was made.
This means that it’s not enough that your communication be with a lawyer. It must be with your lawyer. You must form an attorney-client relationship before the communication at issue for the privilege to attach.
The communication must be made in confidence.
At a cocktail party in a large group of friends when you ask your question? It’s almost certainly not privileged. Your mom gave you a ride to your lawyer’s office and was there while you discussed your case? Assuming you’re an adult, no privilege there, either (even if your mom is footing the bill).
To be made in confidence, the communication must be between just you and your lawyer. Spouses are typically an exception, and your lawyer’s firm (including support staff) is also exempt from this general rule. However, any unrelated third party’s presence destroys the privilege.
The communication must relate to a matter about which the attorney is being professionally consulted.
Did you talk to your tax lawyer about how much you hate your mother-in-law? It’s probably not privileged (unless you were asking about potential tax consequences).
Asking for general business advice outside the scope of legal expertise? Same thing. Unless you’re communicating with your lawyer about something in a professional context (as opposed to simply chatting), it’s usually not privileged.
The communication must be made in the course of giving or seeking legal advice for a proper purpose (but it doesn’t have to be in the context of a lawsuit).
Just telling your lawyer something doesn’t make it privileged. For instance, copying a lawyer on internal business correspondence as a matter of course doesn’t render that correspondence privileged material. You have to actually be seeking or receiving legal advice. That said, the advice doesn’t have to be about litigation. It could be about a potential merger, tax treatment of a particular transaction, or any other matter for which you need advice.
It’s important to note that you must also have a proper purpose. Trying to think up a way to defraud a business partner you no longer like? Don’t try to rely on the privilege protecting conversations about that. Want to illegally avoid paying your taxes? That’s not a proper purpose, either.
The “crime fraud exception” to the privilege is designed to prevent ne’er do wells from taking advantage of the attorney-client relationship to perform misdeeds.
The client must not have “waived” the privilege.
Even if you meet all of the criteria above, you can still destroy the privilege simply by telling someone outside the attorney-client relationship about the substance of the communication. It doesn’t matter who the third party is; it can be a family member, accountant, business associate, or the court.
Once you tell someone else what was said, or make the advice an issue, the privilege is gone. This is particularly true if you tell someone that you did something “on advice of counsel.”
Likewise, you can waive the privilege by discussing communications in an online forum. You might even waive the privilege by using a third party’s computer or email system (such as using your employer’s computer to discuss a personal legal matter while you’re at work) to send or receive communications. Of course, suing your lawyer or accusing him or her of malpractice can also waive the privilege.
There are other ways the attorney-client relationship may shield materials (such as the work product doctrine, which protects materials prepared for or in anticipation of litigation, together with attorneys’ mental impressions).
However, as this article hopefully made clear, the attorney-client privilege itself is a fragile thing. It can be difficult to create, and all too easy to destroy.
The best thing to do is to ask your lawyer any questions you have (in private, of course), and then follow his or her advice!
1 In re Investigation of the Death of Miller, 357 N.C. 316, 335, 584 S.E.2d 772, 786 (2003).