But if I tell you everything, then you will tell the judge!
As lawyers, we take seriously our many obligations to our clients. But our clients have a few obligations to us too, and they are just as critical to the success of a representation. One of those obligations is to answer our questions fully and with complete candor. One of the surest roads to defeat in a lawsuit is not giving your attorney the facts.
But, you might reasonably ask, if you tell us your darkest secrets, can’t your opponent make us disclose them to the court? The answer—with a few very narrow exceptions discussed below—is no. What you tell us in confidence, we keep in confidence.
General Rule: What You Tell Us in Confidence is Privileged
Generally speaking, what you tell your attorney in confidence must be kept that way. As the New York Statement of Client Rights puts it: “You have the right to privacy in your communications with your lawyer and to have your confidential information preserved by your lawyer to the extent required by law.” We call those communications privileged communications. As a general rule, privileged communications are protected from disclosure.
Moreover, even if what you tell us is not technically privileged, we have a broader duty to maintain client confidences.
The Communication Must be Confidential
Some important things to remember: for a communication to be privileged, it must be made in confidence. If you include people other than you and us in your communications, or if they are made in a way that is accessible to third parties (such as on a company email system), they may lose their privileged status. Relatedly—and this is something that sometimes trips people up—if the communication is confidential when you make it, but you later disclose it (by, for example, forwarding an e-mail from us to you on to a third party), it again may lose its privileged status. So, to maintain the privilege, keep your communications strictly between us and you.
The Communication Must Relate to Our Legal Representation
Sometimes, lawyers (including us) provide business advice to clients. In particular, it is common for in-house lawyers to be involved in business discussions. There may also be other connections between lawyers and their clients, and the information may be exchanged in various other contexts. You cannot assume that any discussion would be privileged simply because the person you are speaking to is a lawyer, or even your lawyer. If the communication is not related to legal advice, it is not privileged.
What About Other Advisors?
The attorney-client privilege can extend to non-attorneys who help us provide you with legal advice. So your communications with our paralegals or secretaries related to our representation would be covered in the same way as your communications with us. Likewise, if we talk to your accountant or bookkeeper to gather information that we need to represent you, those communications typically are considered privileged as well. However, the work of an accountant and bookkeeper generally is not privileged, even if they are providing you (as opposed to us) advice relating to a lawsuit.
Further, the work that accountants, bookkeepers, consultants or other advisers create at our request in anticipation of litigation is subject to a different kind of protection—the “work product” protection.
Evidence Sent to an Attorney
Information or documents do not become privileged simply because they were transmitted to a lawyer. For instance, if your accountant sends us a document reflecting a financial transaction, your accountant’s related comments to us may be privileged, but the document itself would not acquire privileged status if it was not privileged to begin with.
Narrow Exceptions to the Rule
The few and narrow situations in which we may be required to divulge confidential communications are specified by law. They are when necessary:
- to prevent reasonably certain death or substantial bodily harm;
- to prevent the client from committing a crime;
- to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
- to secure legal advice about compliance with the Rules of Professional Conduct or other law;
- to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or to establish or collect a fee.
There are many fine points and distinctions to the general rules discussed above, so when it comes to privilege issues, it is important to discuss the issue with us. That said, the general rule almost always applies: what you tell us in confidence, stays in confidence.