What You Should Know About the Attorney-Client Privilege

We have written here and here about how your email communications can come back to haunt you, and here about how you can often save legal fees by calling your attorney sooner.

Bill Nolan

An important related topic often misunderstood by businesspeople is the attorney-client privilege. What is it? What does it mean? How can it help protect your business? I will give you a primer.

I do not usually quote statutes here, but in this case I think it is helpful for you to see where this “attorney-client privilege” comes from. The Ohio Revised Code section entitled “Privileged Communications” states in part:

The following persons shall not testify in certain respects:

(A) An attorney, concerning a communication made to the attorney by a client in that relation or the attorney’s advice to a client, except that the attorney may testify by express consent of the client …

Add to this the rules that govern the procedures in lawsuits, which state that other parties cannot obtain privileged communications in the course of that lawsuit.

That is the core of the attorney-client privilege. In layman’s terms, with very few exceptions, your communications with your attorney for the purposes of legal advice do not get disclosed to other parties and courts, unless you – the client – consent to it. (The attorney cannot consent to it – as the client it’s your privilege.)

The application of the attorney-client privilege to particular situations can get complicated and we cannot make you an expert here, but here are a few basic things that you should understand.

1. It only applies to legal advice. If you and your attorney are also business partners and are communicating about an illegal securities transaction, and the attorney is not giving you legal advice about that, but is interacting with you as a business partner, those communications are not privileged. In other words, communications with lawyers may be privileged because of the nature of the communications, but not just because they happen to be with a lawyer.

2. There are few other privileges. That section of the Ohio Revised Code has some other privileges, such as between physicians and patients. But I hear people who know a little bit about these statutory privileges confuse “privilege” with confidentiality.

Your business or your organization may have communications that you consider to be confidential, and those communications may in fact have certain legal protections. For example, they may be trade secrets such that somebody who misappropriated or misused them would be liable for damages. Or there may be contractual restrictions on sharing the information such that doing so would be a breach of contract. These protections are different than a privilege, and probably can become evidence in legal proceedings.

If you are making certain communications on the assumption that they could never become part of a lawsuit, talk to your lawyer to confirm that is the case. Just calling something “privileged” does not make it so.

3. You can use the privilege proactively to protect communications from disclosure. Making your lawyer a part of communications that pertain to legal advice can protect the communications from future disclosure. We have said here before – those ill-thought-out emails can become evidence, something the sender was not thinking about when he/she hit “send.” Talk to your lawyer about this because it is a complicated subject, but those smoking-gun emails we read about might not have become damaging had they included a lawyer in the first place. (And including the lawyer at that earlier stage might keep the problems from becoming larger as well.)

Understanding both the limits and the power of the attorney-client privilege is another important part of managing your business communications as effectively as possible.