Understanding attorney-client privilege

Most California residents believe that anything they tell their attorney is privileged; that is, their attorney is precluded from telling anyone else. Unfortunately, that is a gross oversimplification of the confidentiality rules to which California lawyers are subject.

The State Bar of California points out that the Rules of Professional Conduct prevent attorneys from revealing certain information without the informed consent of their client. However, there are several exceptions to this rule. One exception is if a client tells an attorney that he or she plans to commit a crime or continue engaging in an illegal activity. Even in this situation lawyers are not required to divulge the information, but can choose to do so or not. If they decide not to, they are not subject to discipline. If they decide to reveal the information, they must first inform the client of their decision and also counsel him or her to pursue an alternate course of action.

Business clients

The American Bar Association agrees that attorney-client privilege serves as the backbone of the legal profession. Nevertheless, not all information is privileged, particularly in situations where a client is seeking both legal and business advice from an attorney.

Only the information and/or documents given to an attorney by a client for the purpose of obtaining legal advice is privileged. In addition, the privilege can unknowingly be waived by the client if he or she shares the same information with someone else, such as a business partner or employee. Furthermore, documents attached to an email addressed to both the attorney and, for example, the head of the company’s finance department are not privileged.

Since the attorney-client privilege sometimes can run counter to a court’s search for truth, judges are loathe to apply it unless the requirements clearly are met. This puts the burden squarely on both attorneys and clients to make sure they are.