The Attorney-Client Privilege: Opportunities and Pitfalls

The attorney-client privilege is fundamental to our legal system.  It’s designed to promote full and frank communications between a client and the client’s attorney.  For the attorney-client privilege to apply, the following elements must all be satisfied:

  1. There must be a communication;

  2. Made between “privileged persons” (a client, an agent of a client, and an attorney);

  3. In confidence;

  4. To seek, obtain, or provide legal assistance to the client. 

Although seemingly simple, each of these elements has the potential for confusion.  Below we clarify some common misconceptions and offer tips for preserving the privilege.

The attorney-client privilege cannot be used to hide bad facts.  One cannot cloak a fact under the attorney-client privilege simply by communicating that fact to an attorney.  An email from the client to his lawyer saying, “we just had a spill,” does not create a privilege as to the client’s knowledge about the spill or allow the client to avoid mandatory reporting requirements under environmental laws.  Likewise, forwarding an unfavorable document to a lawyer does not protect that document from disclosure.  But the attorney-client privilege does protect candid communication between client and attorney about bad facts.

The attorney-client privilege may be waived.  The attorney-client privilege does not apply to information that is shared with third parties or people who are not “privileged persons.” When that happens, the privilege is waived.  Thus, clients should avoid:

  • Sharing communications about legal advice with third parties.
  • Discussing with third parties the contents of the client’s communications with the client’s lawyer.    
  • Including individuals who may only be tangentially involved in the legal issue on communications with a lawyer, even if those persons are employees of the client.  
  • Internally sharing privileged communications with non-lawyers for non-legal purposes.  

Emails and email chains are particularly tricky.  It is not uncommon for otherwise privileged information to be inadvertently waived by forwarding emails to persons who are not the client or the client’s agents.  Likewise, the subject matter discussed in an email chain may morph as different individuals reply and forward the communication.  The best approach is to carefully segregate email communications containing legal advice.

The “lets copy a lawyer” strategy may risk disclosing combined business and legal communications.  As mentioned above, the attorney-client privilege applies only to legal advice, not business advice.  A court might conclude that a single communication containing a blend of legal and business advice is not privileged because its purpose is predominantly business. The better approach is to segregate legal and business communications and thereby maximize protection of legal advice.

Consider how to preserve the privilege with respect to internal investigations and audits.  Clients often conduct internal assessments and fact gathering using both informal and formal procedures.  These assessments include, among other things, incident investigations, compliance audits, and evaluations of potential permitting options.  Involving an attorney early in the process allows for client representatives to discuss and obtain advice about legal issues discovered in the investigation and to protect that information from disclosure to third-parties.

What about consultants?  In environmental law, consultants play a key role in helping clients understand complex technical issues.  Communications with consultants may be privileged if they are used by an attorney to provide legal advice.  Clients should think carefully about how to engage and communicate with consultants.  For example, in the context of a transaction, a client may want to hire an environmental consultant to perform due diligence.  If the client hires the consultant directly, without the involvement of a lawyer, there is a risk that the communications with the consultant will be considered non-privileged business advice.  If instead, the client’s attorney engages the consultant for the express purpose of developing facts that will assist the lawyer to render legal advice to the client, there is a much stronger case that the attorney-client privilege will apply.

When in doubt, talk to your lawyer about how to handle communications involving legal advice. As with most legal issues, it is easier to prevent problems than to correct problems.  This is particularly true with respect to the creation of documents that could be misleading, misconstrued, or incorrect.  As an example of how this could happen, imagine that a company environmental employee discovers information that he believes is evidence of a violation.  If that employee were to simply email his supervisor “we violated X because we did Y”, that communication would be potentially discoverable.  And despite the employee’s good intentions, the communication may turn out to be inaccurate after a more thorough factual and legal investigation.  The better approach would be to work with legal counsel to investigate the suspected noncompliance.  This would allow company environmental staff and their attorney to have an open discussion of the issues.  Importantly, it also avoids the situation of having to later defend a damaging and inaccurate document.  If unsure, before putting a potentially damaging statement in a document, check with your lawyer.

Chris Smith