Attorney Client Privilege

Overview

The attorney-client privilege is one of the oldest and most respected privileges. It prevents a lawyer from being compelled to testify against his/her client. The purpose underlying this privilege is to ensure that clients receive accurate and competent legal advice by encouraging full disclosure to their lawyer without fear that the information will be revealed to others. The privilege covers written and oral communications and protects both individual and institutional clients. The privilege extends from the attorney to include legal office staff that facilitates communications to and from the attorney.

The attorney-client privilege does not apply to every communication with an attorney. For the privilege to exist, the communication must be to, from, or with an attorney, and intended to be confidential. In addition, the communication must be for the purpose of requesting or receiving legal advice. For example, an e-mail or memorandum from one administrator to another concerning a legal matter typically is not privileged because such e-mail is not sent to or from an attorney for the purpose of obtaining legal advice.

Communications must be kept confidential for the privilege to apply. If the substance of attorney-client communications is disclosed to persons outside the University – or even to persons within the University who are not directly involved in the matter – the privilege may be extinguished.

Your communications with General Counsel or outside counsel representing WSU should never be discussed with anyone outside WSU, including family members or friends. Within the University, such communications should be discussed only with persons who have responsibility for the particular matter.

With respect to e-mail communications, take care before forwarding advice to another party because such action may waive the privilege. It is important to keep in mind how open an e-mail communication can be.  As a rule of thumb, if you would not be willing to put it in a blog, you might not want to put it in an e-mail.  

Since the General Counsel’s Office is dedicated to the University as a whole, communications by individual employees to the General Counsel may be disclosed to other administrators or to outside counsel retained to represent or advise the University on a “need to know” basis.

This is a very general discussion of the attorney-client privilege. If you have questions about the attorney-client privilege in your work with WSU, please call the OGC.

Attorney Work Product

Attorney work-product is closely related to attorney-client privilege.  Broadly, attorney work-product includes documents, records, and the like that are compiled or produced at the request of counsel in anticipation of possible legal proceedings.

Specific Situations Not Covered By The Privilege

The attorney-client privilege does not extend to the fact that a consultation between attorney and client occurred, or to the general subject matter of the consultation. It protects only the content of the communications during that consultation. For example, the privilege would not protect the fact that a vice president met an attorney in the Office of the General Counsel to discuss the development of a particular University contract, but the privilege would protect the discussions between the two persons such as the advice sought or given.

Lawyer in the Room

Sometimes a lawyer is called upon to participate in activities that do not necessarily call for specific legal advice or representation. In those contexts, the attorney-client privilege may not apply. A meeting with legal counsel in attendance is not protected just because a lawyer is in the room. Where a lawyer is called upon to play a different role (e.g. investigator or a member of a search committee) and is not acting as a lawyer, the privilege may not apply.

Documents Given to an Attorney

Documents do not automatically become privileged simply because they are given to or reviewed by an attorney. An existing, non-privileged document which is forwarded to an attorney does not then become privileged.

Correspondence with Copies to an Attorney

General correspondence does not become privileged because an attorney is listed among those receiving a copy or “blind” copy. If the author is attempting to convey the content of an attorney’s advice to others in the organization with a legitimate need to know, the correspondence is privileged as long as the document falls within the scope of protected written communications described above.

Communications in the Presence of a Third Party

The privilege extends only to communications that the client intends to be confidential. Communications made in non-private settings, or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted, are not confidential and are not protected by the privilege.

-- updated April, 2011