One of the bedrock principles of the attorney-client relationship is attorney-client privilege. For a client and attorney in Massachusetts to speak openly and frankly about a case, the communications between the two are considered privileged and not subject to discovery or exposure to third parties, including government entities, prosecutors, and the court. This allows the client and attorney to freely discuss the issues of a case without fear of disclosure. It can include confessions to a crime or to liability in a tort or other civil matter. Frequently it goes to medical conditions that clients do not want the insurance attorneys to uncover.
Communications between a client and attorney include all correspondence, emails, texts, and verbal discussions. The privilege extends to the attorney’s associates, paralegals, and assistants. For minors, the privilege encompasses communications made to and from the minor’s legal guardian or parents.
The privilege is not intended for third parties who are not part of the attorney-client relationship. Their presence when any sensitive information is communicated means that the client communicating to the attorney does not intend to keep the information or communication confidential or privileged.
How is Attorney-Client Privilege Established?
For the privilege to exist and be asserted, the communication or relationship must meet certain criteria:
- Existence of an attorney-client relationship—this can be by written retainer, an email establishing it, an oral agreement of engagement, or by the attorney’s conduct such as appearance in court on the client’s behalf, filing documents on behalf of the client, or drafting documents for the client, Other expressions of representation are the payment of fees, a history of legal representation between the client and attorney, and the request and receipt of legal advice.
- The communications are made in confidence and without the presence of third parties who are not associates or staff of the attorney
- The purpose of the communication is to seek or obtain an opinion of law or other legal assistance
- The parties have agreed on representation that can be openly expressed or by the conduct of the attorney
For corporate clients, it can be a little more complex. Courts will usually look at the substance of the communications and the attorney’s role. For instance, business advice may not be privileged. But if legal and business advice are part of the same communication to in-house counsel, courts will look to see if the attorney is acting as a business executive or as corporate counsel.
Also, if the communications or information relayed could have been found in a separate source, then the information is not privileged.
If you are unsure if the attorney-client privilege exists when talking to an attorney, paralegal, or other staff member, ask the attorney if the privilege applies to the communications before making any disclosures.
How Long Does the Privilege Last?
Once the privilege is established, all communications with certain exceptions last indefinitely or until the client expressly waives it. A waiver is assumed if a third party who is not an attorney or part of the attorney’s staff is present during the information or discussion. Privileged information can also be waived by carelessly or even unintentionally informing a third party.
Even when your case resolves and the attorney-client relationship ends, any communications associated with the case remain confidential.
What is Not Covered by the Privilege?
What can be disclosed to others despite the attorney-client relationship may include:
- Existence of an attorney-client relationship
- The duration of the relationship
- Terms and conditions of the representation
- Who participated in legal discussions even if privileged
- Appointment and legal calendar documents
- Fee arrangement unless it includes confidential information
Exceptions to Attorney-Client Privilege
There are some notable exceptions to the attorney-client privilege:
- A probate matter where a testator passes away and the decedent’s heirs and other parties engage in litigation regarding the deceased testator
- In a corporate setting, the shareholders attempt to pierce the corporation’s attorney-client privilege
- Crime or fraud—a client’s confession to a crime or fraud, including homicide, is still privileged but not if the client asks for assistance in committing one or in the furtherance of a crime or fraud or desires to conceal his role in the crime
- If the same attorney jointly represents two clients, neither client could assert the privilege against the other in litigation if that litigation pertained to the subject of the previous joint representation
It is important to note that the attorney-client privilege is not absolute and can be waived or be non-existent even when a client communicates with an attorney. But if an attorney discloses privileged information to others without the express consent of the client or cannot point to recognized exceptions, the attorney risks a legal malpractice claim if the client suffers significant harm as a result.
Retain a Legal Malpractice Attorney from Burns and Jain
If you know or suspect that your attorney breached his legal duty to you by disclosing sensitive information to others without your consent and you suffered substantial harm, contact a legal malpractice attorney from Burns and Jain to discuss your case and determine if you have a viable legal malpractice claim.