Communications between an attorney and his or her client are generally protected from disclosure by the attorney-client privilege.
A communication covered by the attorney-client privilege can never ethically be revealed to anyone by the attorney and can never be subpoenaed by a court unless a specific exception applies.
However, the privilege is lost if the communication is made in the presence of a third person or otherwise disclosed to a third person because the law presumes that, if another person is present or given access to the communication, then the parties did not intend the communication to be confidential. The attorney’s staff is not considered a third party for purposes of this rule.
This means that you, as the client, should make sure you attend meetings with your attorney alone and have phone calls with your attorney in private.
You should avoid using your work email to communicate with your attorney because most employers have clear policies stating that employee use of computers may be monitored.
You should also refrain from discussing your legal matters with others, including family members and friends.
You must also be very cautious about use of the “reply all” button. When corresponding with opposing counsel, your attorney may blind copy (bcc) you.
If you hit the “reply” button, only your lawyer will receive your comments, but if you hit “reply all,” opposing counsel will also receive the email you intended for your attorney.
If you do so, there is a risk that you will be considered to have waived your attorney-client privilege with respect to that email, all communications on the same subject as the email, or even all of your communications with your attorney.
Corporations also have an attorney-client privilege, though the rules are somewhat complex as to who represents the corporation for this purpose and vary from jurisdiction to jurisdiction. The law pertaining to the attorney-client privilege of LLCs is still unsettled in many jurisdictions.
Please feel free to contact us if you have questions about the attorney-client privilege.
