Examining the Attorney-Client Privilege

Posted on: January 20, 2022 by Huntersure LLC.

Attorney-client privilege is one of the most important concepts in law. It protects a legal representative and their client alike from the harm that could be done if others were privy to private communications. Though it’s an important concept, it remains widely misunderstood, and many clients wonder what qualifies as attorney-client privilege? Attorney-client privilege simply means that communications between these parties are entitled to secrecy, with only a few notable exceptions. These exceptions include the client’s death, the attorney’s fiduciary duty, and instances of crime or fraud. In all other circumstances, though, the standard remains — which prompts the question, how do you assert attorney-client privilege?

Address Communication to Attorney

Asserting attorney-client privilege is largely a matter of precaution. Clients and attorneys should always be aware of their surroundings and avoid discussing confidential matters where others may be able to hear. Clients must also be explicit in addressing their attorney directly in order to indicate that they are the only intended audience. To this end, a client should address all communications — written and spoken — to their attorney, by name. This acknowledgment is the first step towards preventing any unintended parties from intercepting.

Ask for Legal Opinion and Analysis

Invoking an attorney’s name is a wise step, but it’s not guaranteed to be sufficient to sustain the protection of attorney-client privilege. For the sake of thoroughness, you should also seek out legal advice and opinion from your attorney whenever you communicate, too. This confirms that the purpose of your communication is directly related to your attorney-client relationship, thus confirming that it’s protected by attorney-client privilege. This can shield any communications from potential entry into evidence if you go to trial and prohibit a plaintiff’s attorney from intercepting these communications, too.

Always Confirm Attorney-Client Privilege

Perhaps the most important step in asserting attorney-client privilege is to simply spell it out prior to any conversation that takes place. In email, this can be done by stating “Attorney-Client Privileged Communication” in the subject line or before the email’s text, or in an in-person conversation, you may verbally confirm that your communications are protected by attorney-client privilege. Simply confirming this fact is an important strategy for minimizing the potential compromise of attorney-client privilege.

Limit Sharing of Communication With Attorney

When you communicate with an attorney, you’ll inevitably have to copy others who need to know about the information you’re sharing. Though this is necessary, it should be limited as much as possible, with only a select few people receiving access to the communications that you share with your attorney. Remember, too, that these people shouldn’t be family and friends, but other professionals involved in your case. Sharing your communications irresponsibly can be a lawyer professional liability, and it may invalidate attorney-client privilege.

About Huntersure

Huntersure LLC is a full-service Managing General Agency that has provided insurance program administration for professional liability products to our partners across the United States since 2007. We specialize in providing insurance solutions for businesses of all sizes. Our program features can cover small firms (grossing $2.5 million annually) to large corporations (grossing $25 million annually or more). We make doing business with us easy with our breadth and depth of knowledge of E&O insurance, our proprietary underwriting system that allows for responsive quoting, binding and policy issuance and tailored products to meet the needs of your insureds. Give us a call at (855) 585-6255 to learn more.

Posted in: Lawyer's professional liability insurance