Attorney-Client Privilege A Primer
The attorney-client privilege has preserved the confidentiality of communications between lawyers and clients since the days of Elizabethan England. It was originally designed to prevent a lawyer from being compelled to testify against a client. The modern purpose is to encourage full disclosure so that the client receives the best and most informed legal advice, without fear that the information will be revealed to others. The privilege extends to agents of either the client or the lawyer (e.g., secretaries.) The privilege applies to institutions as well as individuals. Thus, communications that W&L "agents" (trustees, administrators, faculty, staff, and students) have with University attorneys, in confidence, for the purpose of obtaining legal advice about University matters are protected by the attorney-client privilege.
What is Protected
The privilege protects (1) oral and written communications, including electronic communications, (2) between an agent of the University and an attorney from the Office of General Counsel (3) for the purpose of requesting or providing legal advice on University matters. Thus, the contents of a memorandum from a faculty member to General Counsel seeking advice on the copyright implications of certain course materials would be protected by the attorney-client privilege, while the contents of a memorandum from a faculty member to his department head on the same issue would not.
What is Not Protected
- The fact that a consultation between attorney and client occurred and the general subject matter of the consultation are not privileged, only the content of the communications.
- The mere fact that a lawyer is called upon to be present or participate in a discussion/meeting does not make all communications privileged. Only such portion of communications where legal advice is sought or discussed will be privileged. Where a lawyer is called upon to play a role other than as counsel (e.g., investigator, business advisor or other general, non-legal consultant), the privilege may not apply.
- Documents sent to or reviewed by an attorney are not automatically privileged; they must be forwarded to the attorney for the purpose of obtaining legal advice.
- Communications made in "public" settings, or in the presence of third parties without a legitimate need to know otherwise confidential communications, are not deemed confidential, and are not privileged. Confidentiality is the key to preserving the privileged nature of the communication!
When to Seek Protection Under the Privilege
- In anticipation of potential litigation;
- Prior to (and, as needed, during) the investigation of conduct that may raise legal concerns;
- In connection with compliance and risk management programs;
- As needed with any other University matters where legal advice may be helpful and confidentiality is critical.
Invoking the Privilege In Oral Communications
- When the purpose of any meeting is to obtain or discuss legal advice, or to gather information needed to obtain legal advice, it is best to have an attorney from the General Counsel's Office present for the discussion, either in person or via telephone. Only officials who have a legitimate need-to-know should attend such meetings. Do not disclose privileged communications in meeting minutes or memoranda.
- Avoid discussing attorney-client communications in places where you could reasonably expect to be overheard.
Invoking the Privilege In Written Communications
- Identify and assert the privilege on the document by marking the document at its heading, "Attorney-Client Privileged Communication."
- Send the document to a University attorney and limit distribution to those with a legitimate need-to-know. Identify all recipients on the document, no blind copies.
- Treat the document and all information contained on computer disks, hard drives and back up systems as confidential and maintain securely.
- In case of an inadvertent disclosure, immediately consult General Counsel, advise the recipient that disclosure was inadvertent, and request return of written materials.
Through conversations with a colleague at another institution, Dr. Jones becomes aware that he may have inadvertently violated certain regulations of the Environmental Protection Agency. Dr. Jones asks the colleague for further information about the regulation, but is careful not to reveal that the university may not be in compliance.
Dr. Jones immediately sends an email to an OGC attorney, detailing the facts that give rise to the violation and asking for legal advice. Dr. Jones simultaneously cc's his department head, Dr. Gardener.
In this example, Dr. Jones' disclosure to the OGC attorney is protected by the attorney-client privilege. The disclosure to Dr. Gardener does not break the privilege, because Dr. Gardener needs to know about potential litigation involving the department he oversees. However, Dr. Jones' conversation with his colleague is not subject to the attorney-client privilege. The colleague can be compelled to testify against Dr. Jones in a subsequent legal proceeding, which is why Dr. Jones was prudent to use circumspection when initially discussing the matter with the colleague.
Questions? Contact the Office of General Counsel, x8941.