by Tim Herring – The attorney-client privilege is one of the oldest privileges recognized by the law. The privilege protects private communications between a lawyer and a client for the purpose of obtaining or providing legal advice. The policy behind the privilege is to allow a client to be candid with her attorney in order to get high-quality legal advice without fear of disclosure to third parties. While most people have a general idea about the attorney-client privilege from popular culture, the limitations and common misconceptions of the attorney-client privilege receive far less attention but are nonetheless very important.
The most common issue with the attorney-client privilege is waiver. A client can waive the attorney-client privilege by disclosing otherwise privileged communications to a third party. This is why attorneys, with limited exceptions, rarely meet with a client in the presence of a non-client, even if that non-client is a spouse, family member (even children and close relatives), or trusted adviser. The presence of parties other than the client will usually result in a waiver of the attorney-client privilege. In reality, this means that communications and notes from such a meeting are “discoverable” in litigation and would likely have to be produced to an adversary. Private communications between spouses are usually privileged in Connecticut, but, counter-intuitively, that privilege usually does not extend to communications with a lawyer unless both spouses are represented by that lawyer. Also, clients are often surprised to learn that there is generally no protection for communications between them and their children. Waiver of the attorney-client privilege, or a misconception of the reach of the privilege, and the resulting obligation to produce sensitive communications can have disastrous ramifications in litigation. Imagine, for example, if a client had to produce to an adversary an e-mail from the client to her lawyer, but copied to her spouse, in which the client acknowledged the strength of her adversary’s position or other facts or circumstances that the adversary could use to its benefit in litigation? That is obviously a scenario best avoided.
Seeking prompt legal advice often has the corollary benefit of reducing or avoiding ill-advised sensitive and non-privileged communications that would be discoverable in litigation. As the saying goes, an ounce of prevention is worth a pound of cure.