What is NOT Attorney-Client Privilege? Forum

[heavoldgotjuice]

What is not protected under attorney-client privilege? I understand there are things that will not be protected under work-product immunity, but attorney-client privilege seems so expansive that I cannot imagine any communication with a client that is not protected under attorney-client privilege.

As an attorney, you will want to seek protection under attorney-client privilege or work-product immunity - what is not protected under attorney client privilege?

[ph14]

What is not protected under attorney-client privilege? I understand there are things that will not be protected under work-product immunity, but attorney-client privilege seems so expansive that I cannot imagine any communication with a client that is not protected under attorney-client privilege.

As an attorney, you will want to seek protection under attorney-client privilege or work-product immunity - what is not protected under attorney client privilege?

It's really not that broad, especially when contrasted with the professional duty of confidentiality. Attorney-client privilege attaches where there is (1) a communication, (2) between privileged persons, (3) in confidence, (4) for the people of obtaining legal assistance. Plus, (5) it can be waived, either intentionally or inadvertently. If you are missing any of those elements or you waive it, no privilege.

Client comes with his significant other for moral support and talks to the lawyer? Privilege doesn't attach.
Client tells the lawyer the information in a crowded restaurant where they could easily be overheard? Privilege doesn't attach.
Client calls their mom and asks what they should do after XYZ happens? Privilege doesn't attach.
Client's mom calls the lawyer and explains the situation? Privilege doesn't attach.
Client asks lawyer about whether he should invest in a company or some other business-focused communication? Privilege doesn't attach.
Client hands lawyer a study about the harmful effects of the company's product? Privilege doesn't attach (privilege doesn't protect underlying facts).
Lawyer finds out something through his own investigation? Privilege doesn't attach.

[haus]

What is not protected under attorney-client privilege? I understand there are things that will not be protected under work-product immunity, but attorney-client privilege seems so expansive that I cannot imagine any communication with a client that is not protected under attorney-client privilege.

As an attorney, you will want to seek protection under attorney-client privilege or work-product immunity - what is not protected under attorney client privilege?

It's really not that broad, especially when contrasted with the professional duty of confidentiality. Attorney-client privilege attaches where there is (1) a communication, (2) between privileged persons, (3) in confidence, (4) for the people of obtaining legal assistance. Plus, (5) it can be waived, either intentionally or inadvertently. If you are missing any of those elements or you waive it, no privilege.

Client comes with his significant other for moral support and talks to the lawyer? Privilege doesn't attach.
Client tells the lawyer the information in a crowded restaurant where they could easily be overheard? Privilege doesn't attach.
Client calls their mom and asks what they should do after XYZ happens? Privilege doesn't attach.
Client's mom calls the lawyer and explains the situation? Privilege doesn't attach.
Client asks lawyer about whether he should invest in a company or some other business-focused communication? Privilege doesn't attach.
Client hands lawyer a study about the harmful effects of the company's product? Privilege doesn't attach (privilege doesn't protect underlying facts).
Lawyer finds out something through his own investigation? Privilege doesn't attach.

My personal favorite...
client sends emails using their employers (monitored) computer/email system to attorney (re: litigation against employer). Privilege does not attach.

[ph14]

What is not protected under attorney-client privilege? I understand there are things that will not be protected under work-product immunity, but attorney-client privilege seems so expansive that I cannot imagine any communication with a client that is not protected under attorney-client privilege.

As an attorney, you will want to seek protection under attorney-client privilege or work-product immunity - what is not protected under attorney client privilege?

It's really not that broad, especially when contrasted with the professional duty of confidentiality. Attorney-client privilege attaches where there is (1) a communication, (2) between privileged persons, (3) in confidence, (4) for the people of obtaining legal assistance. Plus, (5) it can be waived, either intentionally or inadvertently. If you are missing any of those elements or you waive it, no privilege.

Client comes with his significant other for moral support and talks to the lawyer? Privilege doesn't attach.
Client tells the lawyer the information in a crowded restaurant where they could easily be overheard? Privilege doesn't attach.
Client calls their mom and asks what they should do after XYZ happens? Privilege doesn't attach.
Client's mom calls the lawyer and explains the situation? Privilege doesn't attach.
Client asks lawyer about whether he should invest in a company or some other business-focused communication? Privilege doesn't attach.
Client hands lawyer a study about the harmful effects of the company's product? Privilege doesn't attach (privilege doesn't protect underlying facts).
Lawyer finds out something through his own investigation? Privilege doesn't attach.

My personal favorite...
client sends emails using their employers (monitored) computer/email system to attorney (re: litigation against employer). Privilege does not attach.

On the grounds that the client could not have reasonably believed the communicate is private? That's a funny fact pattern.

[haus]

On the grounds that the client could not have reasonably believed the communicate is private? That's a funny fact pattern.

Yeah, the courts in New York seem to believe that if the employee has been informed that email is monitored (even if the attorney has no knowledge of this), then the communication is not private, thus no privilege. If memory serves this was Scott v. Beth Israel.

[ph14]

On the grounds that the client could not have reasonably believed the communicate is private? That's a funny fact pattern.

Yeah, the courts in New York seem to believe that if the employee has been informed that email is monitored (even if the attorney has no knowledge of this), then the communication is not private, thus no privilege. If memory serves this was Scott v. Beth Israel.

That makes sense to me. Pretty funny in a sad sort of way.

[haus]

On the grounds that the client could not have reasonably believed the communicate is private? That's a funny fact pattern.

Yeah, the courts in New York seem to believe that if the employee has been informed that email is monitored (even if the attorney has no knowledge of this), then the communication is not private, thus no privilege. If memory serves this was Scott v. Beth Israel.

That makes sense to me. Pretty funny in a sad sort of way.

I try to think of it as a reminder that the dull stuff they tell you at orientation for a new job might actually mean something. It kind of stinks for the attorney who could well be blindsided by something like this if they are not paying attention to the details of how their client is sending them messages.

[ph14]

On the grounds that the client could not have reasonably believed the communicate is private? That's a funny fact pattern.

Yeah, the courts in New York seem to believe that if the employee has been informed that email is monitored (even if the attorney has no knowledge of this), then the communication is not private, thus no privilege. If memory serves this was Scott v. Beth Israel.

That makes sense to me. Pretty funny in a sad sort of way.

I try to think of it as a reminder that the dull stuff they tell you at orientation for a new job might actually mean something. It kind of stinks for the attorney who could well be blindsided by something like this if they are not paying attention to the details of how their client is sending them messages.

Yeah, very true. Although if my client is sending me an email "client@biglawfirm.com" that would seem to set off a huge red flag to me. But i'm guessing that lawyer probably didn't even notice that. It's understandable that a busy attorney might not pay any attention to the email address in the "From" field.

[sd5289]

On the grounds that the client could not have reasonably believed the communicate is private? That's a funny fact pattern.

Yeah, the courts in New York seem to believe that if the employee has been informed that email is monitored (even if the attorney has no knowledge of this), then the communication is not private, thus no privilege. If memory serves this was Scott v. Beth Israel.

Yeah I knew that by virtue of doing legal services work before law school. Moral of the story? Never use your work email...even if there hasn't been an express disclaimer by your employer (there may be one buried in an employee manual or all the paperwork they throw at you during your orientation).

[ph14]

On the grounds that the client could not have reasonably believed the communicate is private? That's a funny fact pattern.

Yeah, the courts in New York seem to believe that if the employee has been informed that email is monitored (even if the attorney has no knowledge of this), then the communication is not private, thus no privilege. If memory serves this was Scott v. Beth Israel.

Yeah I knew that by virtue of doing legal services work before law school. Moral of the story? Never use your work email...even if there hasn't been an express disclaimer by your employer (there may be one buried in an employee manual or all the paperwork they throw at you during your orientation).

Or a court could conceivably hold that you don't have reasonable expectation of privacy in your work email, even absent a disclaimer (though there might be some Fourth Amendment case law that could be persuasive on the issue, I don't know).

[sd5289]

On the grounds that the client could not have reasonably believed the communicate is private? That's a funny fact pattern.

Yeah, the courts in New York seem to believe that if the employee has been informed that email is monitored (even if the attorney has no knowledge of this), then the communication is not private, thus no privilege. If memory serves this was Scott v. Beth Israel.

Yeah I knew that by virtue of doing legal services work before law school. Moral of the story? Never use your work email...even if there hasn't been an express disclaimer by your employer (there may be one buried in an employee manual or all the paperwork they throw at you during your orientation).

Or a court could conceivably hold that you don't have reasonable expectation of privacy in your work email, even absent a disclaimer (though there might be some Fourth Amendment case law that could be persuasive on the issue, I don't know).

Truth. Once I got to the "never use your work email to communicate with your Atty" conclusion, I threw the "disclaimer or not?" question into the irrelevant pile.

[ph14]

Yeah, the courts in New York seem to believe that if the employee has been informed that email is monitored (even if the attorney has no knowledge of this), then the communication is not private, thus no privilege. If memory serves this was Scott v. Beth Israel.

Yeah I knew that by virtue of doing legal services work before law school. Moral of the story? Never use your work email...even if there hasn't been an express disclaimer by your employer (there may be one buried in an employee manual or all the paperwork they throw at you during your orientation).

Or a court could conceivably hold that you don't have reasonable expectation of privacy in your work email, even absent a disclaimer (though there might be some Fourth Amendment case law that could be persuasive on the issue, I don't know).

Truth. Once I got to the "never use your work email to communicate with your Atty" conclusion, I threw the "disclaimer or not?" question into the irrelevant pile.

Yeah, that definitely seems prudent. I think the best advice is don't send, download, or view anything on your work computer that you wouldn't be okay with your employer seeing.

[crit_racer]

according to my prof, the privilege could also be waived if you use your PERSONAL email address while at work. It all depends on the company's computer/internet policy. If they reserve the right to monitor any use of their computers, you could be fucked.

[sd5289]

according to my prof, the privilege could also be waived if you use your PERSONAL email address while at work. It all depends on the company's computer/internet policy. If they reserve the right to monitor any use of their computers, you could be fucked.

Yeah, I've heard that too. When I was working before LS, I would just use my phone to check my personal email.