What is Lawyer-Client Privilege?

All communications (written or oral) between a lawyer and a client are protected by a special right of confidentiality. This special confidentiality right is called lawyer-client privilege.

Lawyer-client privilege means that nobody can force a client to disclose the contents of any communications between the client and that client’s lawyer. This privilege is subject to very limited exceptions.

The right of confidentiality belongs to the client (not the lawyer). A lawyer is obligated to protect the right of confidentiality unless the client waives the right.

Privilege applies only to the communications made between the lawyer and the client. It does not apply to agreements and other legal documents prepared by a lawyer. For example, a legal opinion is privileged because it is a communication from a lawyer to a client. Any agreements prepared by a lawyer will not be privileged, however, because those documents implement transactions and are not communications.

A client can waive this confidentiality right (either explicitly or implicitly). Disclosure of the contents of a communication to a third party can constitute an implied waiver. If the client discloses a communication to another, the client might be taken to have indicated that the client no longer considers that the communication is confidential.

Most clients wish to retain this right of confidentiality. To protect against losing this right, clients might wish to do the following.

  1. Refrain from discussing the contents of lawyer-client communications with others.
    1. This is not to say that you cannot discuss what you have decided to do based on what a lawyer has advised. The lawyer-client communication is the actual advice that the lawyer has given, not what you do based on that advice. Of course, you might not want to disclose your decision to others purely for reasons of maintaining privacy.
    2. For example, assume that the lawyer and the client discuss estate planning matters. The client can (and should) discuss the various estate planning options with the client’s family in order to make sure that the estate planning option decided upon is the one that will best suit the family’s needs.
  2. Keep copies of all letters and other communications received from the lawyer in a separate file that is clearly marked “Privileged Legal Material – Not To Be Disclosed”. Keep that file in a secure place, separate from normal (non-privileged) records. This is an easy way to guard against inadvertently showing the correspondence to a tax auditor during the course of an audit.

The lawyer often has discussions with the client’s accountants and other advisers in order to provide legal advice to the client. It is possible to bring those conversation with other advisers under the protection of lawyer-client privilege.