Is Everything Your Attorney Knows Protected?

            Everyone has heard of various legal privileges – attorney-client, patient-doctor, husband-wife and clergy-penitent.  We can tell our lawyers, doctors, spouses and priests private information without worrying that they can be forced to reveal the information in court.  However, the attorney-client privilege has many limitations, particularly when it comes to business clients, which you should keep in mind.

            The purpose of the attorney-client privilege is to encourage clients to make complete disclosure of information to their lawyers so that their lawyers can provide them with competent advice.  The privilege applies to oral, electronic, and written communications. 

            For the privilege to apply, the communication must be made to the lawyer within the attorney-client relationship itself.  That is, if a non-client friend share information with me, her communication will not be protected by the privilege.  Of further interest is the fact that information shared during initial meetings between a client and an attorney will be subject to the privilege even if the client ends up not hiring the attorney. 

            Communications must be made only between the client and the attorney.  If they are made in the presence of a third party, they are not protected.  For example, assume you are sued.  You meet with your lawyer to discuss the case.  If just the two of you meet, your discussion is protected.  However, if you bring someone else to the meeting, such as a friend, the privilege is lost.  You or your friend can be compelled to testify about what you revealed in the meeting.

            On the other hand, the privilege extends to your lawyer's representatives and to your representatives.  For example, your communications with your lawyer's paralegal or secretary are privileged.  The issue of client representatives is more complicated.

            Let's assume that you are the president of a car manufacturer which produces a car that explodes when it is rear ended.  Plaintiffs file suit against the corporation and against you personally.  First, you and the corporation should have separate attorneys, even if you are the majority shareholder of the corporation.  You want someone whose only job is to protect you.

            The corporation's lawyer will want to discuss the suit with various corporate employees, such as designers and engineers.  Because the corporation is the client, you might assume that the attorney's conversations with all employees are privileged.  You would be wrong – they are not always covered by the privilege.  In Illinois, only communications between the attorney and the corporation's "control group" are protected.

            The control group of a corporation (or other entity) is defined as those people with authority to take part in the decision to seek legal advice for the client and to act on such advice.  The control group generally includes top management, such as corporate officers, and may include others who participate in legal decisions.  It will not include assembly line employees.  Therefore, employees other than the control group can be forced to testify about any discussions they have with the corporate attorney.  In addition, conversations between a corporate officer and the attorney in the presence of a non-control group employee will not be privileged.  Discussions with the attorney of sensitive matters should only be made in the presence of top management.

            Communications between top management and the attorney also have limitations.  Communications that are made regarding a future crime are not privileged (as opposed to communications regarding a crime that has already been committed).  In our example, assume that the officers of the corporation intentionally sold the defective car because it would have been expensive to correct the design.  After the cars have been sold and people have been injured, any communications between the corporate officers and the attorney regarding the design process are privileged.  In contrast, discussions regarding the destruction of evidence of perjury will not be protected.

            Let’s look at another example.  Assume one of your employees complains of sexual or racial discrimination.  You, quite properly, decide to start an investigation and ask for your attorney’s assistance.  Can you keep the investigation’s report private under this privilege?  First, be aware that if you plan on arguing that you properly performed an investigation and promptly remedied the problem, the report will not be privileged.  This is because the privilege cannot be used as both a sword and a shield. 

            But, other than this exception, with a little planning your investigation can be protected by the privilege.  Steps you can take include asking for legal advice in writing and stating that it is being requested because of the threat of litigation.  General business advice from your lawyer won’t be protected.  Also, anyone questioned by you as part of the investigation should be informed, in writing, that they are being interviewed for the purpose of providing legal advice to your company and that they should keep the conversation confidential.

            The attorney-client privilege is a powerful, but often misunderstood, legal principle.  There are many good reasons why your communications with legal counsel should remain private.  With a little knowledge and proper planning, they will always remain so.