attorney-client privilege Tagged Articles

Part 1 of this two-part series explored the basic elements of the attorney-client privilege. Part 2 will discuss some of the restrictions to the privilege.

The privilege applies only to legal matters.

While legal advice is protected, advice that is considered “business advice” may not. Unfortunately, the line between legal and business advice is not always clear. Legal advice requires that the attorney interpret law and apply it to specific facts to do one (or both) of two things: tell the client what to do in the future or tell the client what was done right (or wrong) in the past. Business advice involves discussions about the operations of a client which are independent from legal considerations.

If the communication involves both legal advice and business advice, the general rule is that the legal advice must predominate over the business advice. See, Exxon Mobil Corp. v. Hill, 2013 WL 3293496 (E.D. La. June 28, 2013), vacated and remanded on other grounds by Exxon Mobil Corp. v. Hill (5th Cir. May 6, 2014).

The crime-fraud exception.

The privilege is also subject to the “crime fraud” exception. Communications between an attorney and client regarding either: 1) a plan or intent to commit a crime or fraud; or 2) while the crime or fraud is being committed, are not protected by the attorney-client privilege. Remember, you obtain the services of an attorney to obtain legal advice, not illegal advice. As explained by the court in State v. Menard, 02-1182 (La. App. 3 Cir. 5/7/03), 844 So. 2d 1117, the reasons for the privilege cease to operate when the legal advice refers to future wrongdoing.

Other exceptions.

The privilege also has other limitations, including the fact that it may be waived, intentionally or unintentionally, by the client. As discussed in Part 1 of this blog, the decision to include third-parties in conversations and communications (including emails) between the client and the attorney may waive the privilege. If a client sues an attorney after the relationship has terminated, the privilege is likewise waived, and the attorney can discuss privileged communications to defend himself against that suit. Similarly, if an attorney acted as a notary or witness to a document, the attorney may discuss whether a document is authentic or whether the signors were legally competent to sign. Interestingly, the privilege also does not apply to communications with a deceased client if the communications are relevant to an inheritance dispute.

The attorney client privilege offers broad protection; however, it is important to remember that this protection is not without its limits.

This blog is one of a two-part series regarding perhaps the most important aspect of the attorney-client relationship — the attorney-client privilege. So, what is it and why is the privilege so important? In short, the attorney-client privilege is a legal doctrine that protects communications between a client and his or her attorney. Unlike most other relationships, the privilege stays in place even after the relationship is terminated. The purpose of the privilege is to allow clients to have open and honest communications with their attorney. LSA-L.C.E. art. 506. However, not all communications between a client and attorney are privileged and certain requirements must be met for the privilege to attach.

-Existence of Attorney-Client Relationship. An attorney-client relationship must be in place. Louisiana law does not require that the attorney be formally retained or payment made for the privilege to attach. The privilege may apply even when the client merely discusses a legal matter with an attorney when the client reasonably believes the attorney is acting as his or her attorney.

-Confidential Communications. While the communication can take many forms (oral, written, digital, etc.) it is protected only if it was intended to be confidential, which generally means that the communication was not intended to be disclosed to others not involved in the attorney-client relationship or the legal representation. For example, if a client meets with his attorney and brings a friend along, then the meeting may not be protected by the privilege. Because the privilege is for the protection of the client, the client may choose to intentionally waive the privilege, or may do so inadvertently through their actions.

-Legal Services. The communication must be related to obtaining or facilitating the legal services offered by the attorney. The privilege has been held to apply to the employees of the attorney and sometimes experts retained to assist in the case.

When applicable, the attorney-client privilege applies not only to what was said, but also to your attorney’s observations of your mental, emotional, and physical state at the time you communicate. The privilege does not generally apply to information gathered by the attorney from other sources; however, another doctrine, the “work product” doctrine, may nevertheless protect such information.

It is important that clients understand that the privilege does not apply merely because the client chooses to involve the attorney in the communication. Generally, the privilege only applies when the communication was intended as confidential and to further the legal services offered by the attorney. In this way, the client may not be allowed to utilize the privilege where they include the attorney in a communication with a third-party that is not otherwise protected.

While the attorney-client privilege safeguards the attorney-client relationship, ensures that clients can tell their attorney the things they need to know about a case, and assists the attorney to provide the best legal help possible, it is also subject to restrictions. These restrictions are explored in Part 2 of this series.