In general, solicitor-client privilege applies when a client, whether an actual client or a potential client, turns to a lawyer for legal advice. The lawyer must act as a lawyer and not, for example, as a business consultant or friend. In addition, the client must have intended that the information disclosed to the lawyer be disclosed confidentially. A final consideration arises with regard to in-house counsel. Communication on corporate matters between a corporation`s in-house counsel and the corporation`s external counsel is normally subject to privilege.16 However, if the communication is between a representative of the corporation and in-house counsel, the distinction is less clear. Because in-house counsel often wear multiple hats, courts find it difficult to apply privilege.17 The privilege would extend to all legal advice, but does not protect purely commercial communications.18 Problems arise when communications include both legal and business advice, and courts take different approaches to deciding that: whether or not the privilege should be applied. At the very least, it appears that the court will first try to determine what role the in-house lawyer plays within the company – that of a lawyer or that of a business manager. From there, many courts will review the content of the communication, and this review will lead to different results.19 Therefore, in-house counsel should be careful to separate their legal advice from their business opinions. The privilege may be waived if confidential communications are disclosed to third parties. Lawyers may also violate the obligation when defending themselves against disciplinary or judicial proceedings. A client who initiates proceedings against a lawyer effectively waives the right to confidentiality. This is justified on grounds of procedural fairness – a lawyer who is unable to disclose information about the advance would not be able to defend against such a claim.

Lawyers may disclose confidential advance information if they reasonably attempt to collect payments for services rendered. This is justified by political reasons. If lawyers were not able to disclose such information, many would only do legal work if payment was made in advance. This would likely affect public access to justice. In most cases, it is fairly clear that there is a solicitor-client relationship that leads to solicitor-client privilege. For example, you may have an engagement letter or have paid a fee to your lawyer. But what about the initial consultation between a potential client and a lawyer, especially if the lawyer does not represent the interested party? In addition to these more traditional political exceptions to the use of privilege, recent events remind us that privilege is by no means absolute. After the events of 11. In September 2001, for example, Congress quickly passed the USA Patriot Act, which, among other things, expanded powers to conduct searches and monitor activities without judicial intervention.28 The USA Patriot Act led to a number of new rules and executive orders from the Bush administration, including the widely criticized rule of the Bureau of Prisons.29 This rule “empowers the Attorney General to: order the [Bureau of Prisons]. The warden shall supervise or review communications between inmates and lawyers in order to deter future acts that could result in death or serious bodily injury to persons or property. 30 All that is necessary for such surveillance to begin is “reasonable suspicion. that a particular detainee may use the communication between lawyer and client to facilitate acts of terrorism.

31 Although the long-term effects of this new rule are not known, it is recalled that privilege itself is not immune to the political climate in which we live. Be wary of email communications before sharing advice with another party, as such action may outweigh privilege. It`s important to consider how open email communication can be. Typically, if you`re not ready to put it on a blog, you might not want to write it down in an email. But what is the outcome when an employee like Smith seeks guidance in her individual role, as opposed to company characteristics? Courts will grant solicitor-client privilege to officers, including in their individual capacity, provided there is clear evidence that the agent communicated with the agent`s individual counsel in private matters such as possible individual liability. Not surprisingly, the presentation required of company employees in this regard is stricter. In addition, even if the necessary evidence is provided, some information may constitute a conflict of interest for the corporate lawyer. In this case, the corporate lawyer must end the conversation and advise the company employee to consult a separate lawyer.15 Solicitor-client privilege is a fundamental part of the U.S.

legal system. The guarantee of confidentiality not only allows for better legal advice, but also promotes compliance with the law by encouraging communication. A client who has doubts as to whether a particular conduct is within the bounds of the law is more likely to seek advice from a lawyer, knowing that advice cannot be conveyed outside the attorney-client relationship. Exception of common interest. Where two parties are represented in the same legal case by the same lawyer, neither client privilege may invoke solicitor-client privilege against the other in subsequent litigation if the subsequent dispute concerned the subject matter of the previous joint representation. In the United States, communication between accountants and their clients is generally not privileged. A person who is concerned about allegations of questionable accounting, such as tax evasion, may choose to work only with a lawyer or only with an accountant who is also a lawyer. Some or all of the resulting communications may be privileged, provided that all solicitor-client privilege requirements are met. The mere fact that the practitioner is a lawyer does not establish valid solicitor-client privilege with respect to a communication that includes, for example, business or accounting advice instead of legal advice. Exception for criminal offences or fraud. When a client seeks advice from a lawyer to help promote a crime or fraud, or to conceal the crime or fraud after it has been committed, communication is not privileged. However, if the client has committed a crime or fraud and then seeks the advice of a lawyer, these communications are preferred, unless the client intends to conceal the crime or fraud.

Both university lawyers and AU staff are required to protect the university`s privilege. This means that confidential and privileged material and communications must not be disclosed to anyone outside the university or to anyone not directly involved in the legal issues discussed, without permission from the OGC. If you have any doubts as to whether anything can be disclosed, please assume not to disclose the material and contact the OGC for further guidance. Let`s say Smith and his stockbroker meet with Jones to discuss the suspicious sale of shares. Jones is representing Smith in connection with the sale, but not the stockbroker. During the meeting, Smith reveals sensitive information. In this scenario, the privilege is likely to be revoked and the submitted information is not protected from disclosure. The purpose of solicitor-client privilege is to promote open and frank communication between clients and their lawyers. In order to effectively represent a client, lawyers must have access to all relevant information about representation. Solicitor-client privilege recognizes that a client is more likely to provide a lawyer with all relevant information – including information that might be embarrassing or unpleasant to discuss – if those communications cannot be disclosed without the client`s consent. If you need legal advice, a lawyer who specializes in the LegalZoom legal plan can help.

Get an unlimited 30-minute phone consultation with a legal lawyer on new legal issues, tax advice from an accountant, and a document or contract review of up to 10 pages for a low monthly fee when you sign up for the personal legal plan or corporate legal plan. This is a very general discussion of solicitor-client privilege. If you have any questions about solicitor-client privilege in your work with WSU, please contact the OGC. However, a client cannot protect certain facts from disclosure simply by communicating them to her lawyer. If information can be collected from a source other than privileged communications, then the underlying information itself is not privileged.21 In other words, solicitor-client privilege protects “communications made for the purpose of obtaining legal advice; It does not protect the information transmitted. 22 Clients and lawyers should be aware of this important fact: the mere transmission of something to a lawyer does not prevent the underlying facts from being forced to be disclosed if they can be discovered from a non-privileged source.23 General correspondence is not privileged because a lawyer is among those who receive a copy or a “blind” copy. If the author attempts to convey the content of a lawyer`s advice to other members of the organization with a legitimate need, correspondence is preferred as long as the material falls within the protected written communication area described above. Although there are slight variations, the elements required to establish solicitor-client privilege are generally the following: Although there is no single authority over solicitor-client privilege, it has been defined as follows: “(1) Where legal advice of any kind is obtained, (2) by a professional legal adviser in his or her capacity as such counsel, (3) communications are made for this purpose, (4) confidential (5) by the client, (6) at the client`s instigation, on a permanent basis (7) are protected from disclosure by [the client] or its legal counsel, (8) unless protection is waived. 8 Is all communication then protected, provided that the relationship with the client is well established? That depends.