ATTORNEY-CLIENT PRIVILEGE
CONFIDENTIALITY AND ATTORNEY-CLIENT COMMUNICATION
I. Overview
The attorney-client privilege is one of the oldest and most respected privileges. It was designed to prevent 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 email or memorandum from one administrator to another concerning a legal matter typically is not privileged because such email is not sent to or from an attorney for the purpose of obtaining legal advice.
II. Preserving the Privilege: Maintaining Confidentiality
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 the Office of Legal Affairs or outside counsel representing John Carroll University should never be discussed with anyone outside JCU, 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 email communications, clients should take care before forwarding advice to another party because such action may waive the privilege. Generally, conveying legal advice to persons who are directly involved with a decision on behalf of the University will not void the privilege. Disclosure of significant legal advice to persons without such a need to know should be made only after consultation with the Director of Legal Affairs and/or the Assistant Director of Legal Affairs and other appropriate University administrators.
Since the Office of Legal Affairs is dedicated to the University as a whole, communications by individual employees to the Office of Legal Affairs may be disclosed to other administrators or to outside counsel retained to represent or advise the University on a “need to know” basis.
III. Specific Situations not Covered by the Privilege
The Fact of a Consultation
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 with a member of the Office of Legal Affairs 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 does not apply. All conversation at a meeting with legal counsel in attendance, for example, is not protected just because a lawyer is in the room. Moreover, where the lawyer is called upon to play a different role (e.g., investigator) and is not acting as a lawyer, the privilege may not apply.
Underlying Facts Shared with an Attorney
The attorney-client privilege protects the content of communications between the client and attorney. However, it does not extend to underlying factual information that the client shared with the attorney during the course of the communication.
Documents Given to an Attorney
Documents do not automatically become privileged simply because they are given to or reviewed by an attorney. Correspondence, which is forwarded to an attorney for a purpose other than obtaining legal advice, is never 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. However, 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.
Communication 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 therefore are not protected by the privilege.
IV. Summary
If you have questions about the attorney-client privilege in your work with JCU, please call the Office of Legal Affairs.
In requesting or receiving legal advice concerning University business, be assured that the Office of Legal Affairs and staff will preserve the privileged nature of all communications.
