4 novembre 2022
Legal Basis for Attorney Client Privilege
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Documents are not automatically privileged simply because they are given to or reviewed by a lawyer. Correspondence sent to a lawyer for purposes other than obtaining legal advice is never privileged. As noted above, solicitor-client privilege applies to written documents of public entities in the State of Florida in certain circumstances. When a case occurs in the federal court system, the Federal Court applies Rule 501 of the Federal Rules of Evidence to decide whether to apply the privileges of that state or federal common law. If the case goes to Federal Court under the diversity jurisdiction, the law of the state concerned will be used to enforce the privilege. If the case concerns a federal matter, the Federal Supreme Court applies customary federal law on solicitor-client privilege; However, Rule 501 provides flexibility for federal courts, allowing them to interpret privilege « in light of experience and reason. » Rule 2: Stop the communication by asking your lawyer for legal advice and analysis. You may be challenged to maintain privilege if you simply copy your lawyer through your various emails without seeking formal legal advice. To maintain privilege, a judge will usually want to see that you have contacted your lawyer for legal advice and a recommendation. If successful, your description of the facts and the course of action recommended by your lawyer will be protected from the plaintiffs` lawyers (and jury deliberations) if the case goes to court. Not all elements of the client relationship are protected by or contained in solicitor-client privilege. For example, the existence of the client relationship or the duration of the relationship is not privileged information.32 In fact, the general nature of the services provided by the lawyer, including the manner in which they are retained, is generally traceable.
Solicitor-client privilege is distinct from the work product doctrine and should not be confused with the product. Under U.S. federal tax law, communications made on or after July 22, 1998, are subject to limited solicitor-client privilege authorized by the federal government that may apply to certain communications with non-lawyers. [11] The privilege applies only to communications that the client intends to keep confidential. Communications made in non-private environments or in the presence of third parties that are not necessary to fulfill the purpose for which the lawyer was consulted are not confidential and are not protected by privilege. While there are minor differences, the elements necessary to establish solicitor-client privilege in general are as follows: Unfortunately, it is not always so clear when a solicitor-client relationship exists. Let`s say Sally Smith contacts David Jones, a lawyer, by phone. During the conversation, Smith Jones explained that it was involved in a dispute with the Internal Revenue Service over a tax-saving agreement designed for specific business purposes. She reveals important facts and very sensitive information during the conversation, then asks Jones for his legal opinion.
Is the content of this conversation privileged? That depends. [9] The duty of confidentiality of a lawyer does not prevent a lawyer from obtaining confidential legal advice about his or her personal responsibility for compliance with these rules. In most cases, the disclosure of information to obtain such advice is implicitly authorized for the attorney to make the representation. Although disclosure is not implicitly authorized, subsection (b)(4) permits such disclosure because it is important for a lawyer to comply with the Code of Professional Conduct. When it comes to email communication, customers should be cautious about passing advice on to another party, as such an action may waive privilege. As a general rule, the provision of legal advice to persons directly involved in a decision on behalf of the university does not extinguish the privilege. The disclosure of important legal advice to persons who do not need to know should only be made after consultation with the General Counsel and other relevant academic administrators. [1] This rule governs the disclosure of information about a lawyer`s representation of a client during the client`s legal representation. See Rule 1.18 for the lawyer`s obligations with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer`s obligation not to disclose information about the lawyer`s prior representation of a former client`s lawyer, and Rule 1.8(b) and 1.9(c)(1) for the lawyer`s duties with respect to the use of such information to the detriment of clients and former customers. Rule 4: Copy only a limited number of people who have a legitimate need to know the information. Do not copy or share the document with others, otherwise permission may be lost. If you copy 15 people into the communication, a court will likely find that it was not as confidential or proprietary from the start.
Simply involving too many people in communication could jeopardize privilege. As a general rule, try to target the audience only to the lawyer or the lawyer plus another person (e.g. your boss). [2] A fundamental principle of the client-lawyer relationship is that in the absence of informed consent from the client, counsel cannot disclose information about representation. For the definition of informed consent, see Rule 1.0(e). This contributes to the trust that characterizes the client-lawyer relationship. The client is thus encouraged to seek legal assistance and to communicate comprehensively and openly with the lawyer, even on embarrassing or legally harmful matters. The lawyer needs this information to effectively represent the client and, if necessary, to abstain from the client. Almost without exception, clients turn to lawyers to clarify their rights and what is considered legal and correct in the complex of laws and regulations. Based on experience, lawyers know that almost all clients follow the advice and that the law is respected. States may also apply different laws on solicitor-client privilege. In Washington State, privilege only protects customer communications.
whereas in California, the communication of a lawyer is considered privileged no matter what. Rule 5: Do not share the information discussed with the lawyer with others unless asked. It is in the nature of privileged communication between lawyer and client that it is strictly confidential, limited in its distribution and created at a given time on the basis of the strict need to know. Failure to prepare the document according to these criteria may result in loss of privilege and subsequent disclosure of material as part of the plaintiff`s lawyer`s lawsuit against your company. The « control group » was defined by the courts to include employees who were in a position of control, allowing them to play a critical role in determining what actions the company would take after receiving legal advice. See, for example, City of Philadelphia v Westinghouse Elec. Corp., 210 F. Supp. 483, 485-86 (A.D. Pa. 1962). ↩ Exception for criminal offences or fraud.
When a client seeks advice from a lawyer to help promote a crime or fraud, or to conceal the crime or fraud after it has been committed, communication is not privileged. However, if the client has committed a crime or fraud and then seeks the advice of a lawyer, these communications are preferred, unless the client intends to conceal the crime or fraud.
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