Shades of Confidentiality: Understanding the limits of attorney-client privilege
Attorney-client privilege has been in the headlines of major newspapers recently with the ongoing reporting on the search warrant executed on President Trump’s attorney, Michael Cohen. This story has put attorney-client privilege in the spotlight and illustrates that a basic understanding of the attorney-client privilege—and its limits—is essential for anyone who is working with an attorney.
The attorney-client privilege protects certain communications between a client and their attorney from disclosure. The rationale underlying the privilege is to encourage a client to fully inform their attorney so that the attorney can properly advise the client. Not every communication with an attorney, however, is privileged. Merely including the phrase “Attorney-Client Privileged” in an email to your attorney is not enough. Nor is copying your attorney on every email you send.
In order for a communication (oral or written) to be afforded the protections of the privilege, several elements must all be present. The communication must be (1) confidential; (2) between an attorney and a client; and (3) made for the purposes of giving or receiving legal advice.
First, the communication must be made in confidence. Communications to your attorney that are made with the intention of being conveyed to a third party are not protected. Neither are communications to your attorney in the presence of third parties. A phone call with your attorney while you are sitting in a crowded airport lounge may not be protected. Similarly, an email to your attorney copying your accountant may not be protected. One exception to this general rule is that certain agents, such as support staff or a translator, may be present.
Second, an attorney-client relationship must exist. Chatting with an attorney at a conference about a legal problem you’re facing does not mean the communication is protected. Unless you have an attorney-client relationship with your new acquaintance, the communication may not be protected. In the corporate context, the attorney-client relationship usually extends to employees if the subject matter of the communication is within the scope of the employee’s duties.
Third, the communication must be for purposes of giving or receiving legal advice. This element is where most clients run into trouble. Your attorney must be wearing their attorney “hat” according to the scope of their representation. Emailing your patent attorney with a stock tip may not be protected because stocks are typically outside the scope of the representation of a patent attorney. Likewise, copying your in-house attorney on every email you send will not render those emails privileged. Many in-house attorneys provide business advice in addition to legal advice; only communications for legal advice purposes are protected.
Even if the communication is covered by the attorney-client privilege, a client can unintentionally destroy or waive the privilege by sharing it with a third party. For example, forwarding an attorney email to your friend or discussing details of your meeting with your attorney with your golf foursome can waive the privilege.
Armed with this basic understanding of the attorney-client privilege, it is wise to discuss the complexities of your particular situation with your attorney to ensure that your communications are protected and that you do not unintentionally waive the privilege.
Sarah Stensland is a trial attorney in the IP Litigation Group at Patterson Thuente IP. If you have an inquiry about enforcing your patent or trademark rights, contact her at 612.349.3006 or firstname.lastname@example.org.