Communications between a client and a lawyer for the purpose of seeking or providing legal advice are generally confidential and neither the client nor the lawyer can be compelled to disclose them. The protection that applies to such communications is called the “attorney-client privilege.” The rationale behind the attorney-client privilege is to ensure that clients are able to tell their lawyers all of the facts relevant to the advice the client seeks, no matter how embarrassing or damaging those facts might be, to ensure that the client is able to obtain the best possible legal advice and to enable the lawyer to provide advice that is tailored to the client’s specific situation.
The privilege “attaches” to communications by a client (or potential client) to a lawyer for the purpose of seeking legal advice and to legal advice provided by the lawyer to the client. It is critical that the communication with the lawyer be for the purpose of obtaining legal advice. If the communication was made for the purpose of obtaining business or other advice, it may not be protected by the privilege.
To be protected, the communication between the lawyer and the client must be made in confidence, with no others present, and it must be made with the expectation that it will not be disclosed to others. For this reason, a lawyer will typically insist on meeting with a client alone and will caution the client not to divulge the substance of their discussion to others.
The privilege belongs to the client and continues even after the attorney-client relationship ends. In other words, it is up to the client to decide whether the protected communication can be disclosed, and the lawyer may not disclose it without the client’s permission. There are a few exceptions to that rule, however. If a client intentionally discloses an otherwise privileged communication, it is possible that the privilege may be deemed waived and the lawyer or the client may be compelled to disclose it. For this reason it is very important that clients refrain from divulging to others the discussions they have had with their lawyer. However, where a lawyer has jointly represented more than one client, communications made between the lawyer and one of those clients are not protected from disclosure to the other clients.
There are some circumstances in which a lawyer to whom a privileged communication has been made is required to disclose it, even over the client’s objection. The Rules of Professional Conduct require a lawyer to reveal otherwise privileged information “to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another, or to prevent the wrongful execution or incarceration of another.” (SJC Rule 3:07, Prof. Conduct R. 1.6(b)(1).) Lawyers may also be permitted to disclose a privileged communication to the extent necessary to defend themselves against claims made by a client for malpractice or in connection with a claim brought by the lawyer against the client for an unpaid fee.
It is essential that a lawyer and client be able to communicate confidentially about the client’s case and, therefore, it is critical that both parties take every available step to ensure that the attorney-client privilege remains intact.