Attorney-client privilege: what it protects

Attorney-client privilege lets you keep certain communications with your lawyer out of the hands of an opposing party. The key word is certain: it protects confidential communications made for the purpose of seeking or giving legal advice, and it does not automatically cover every email, fact, or document just because a lawyer is somewhere in the chain.

What is actually protected

As the Legal Information Institute explains, the privilege covers confidential communications between a lawyer and client that relate to the client’s seeking of legal advice or services, across conversations, letters, emails, and messages. Courts have long held that it protects the communication, not the underlying facts: you cannot shield a fact from disclosure simply by telling it to your lawyer. Communications about ordinary, non-legal business are generally not privileged at all.

The privilege belongs to the client

The privilege is the client’s to invoke or waive, and it can be raised against a discovery request, a subpoena, or questions at a deposition. But adding a lawyer as a recipient, or copying counsel on a message, does not by itself make an otherwise ordinary communication privileged; the communication still has to be about legal advice and kept confidential.

A lawyer’s staff and agents

You usually deal with more than one person at a law office, and privilege rules account for that. Texas offers a clear labeled example. Texas Rule of Evidence 503 covers confidential communications between the client and the lawyer’s representative, and between the lawyer and that representative. It defines a lawyer’s representative as someone the lawyer employs to help provide legal services, or an accountant reasonably necessary for those services. The same Texas rule also protects a client’s own representatives, such as an employee who passes information to the company’s lawyer within the scope of the job.

Limits still apply. The Legal Information Institute notes that the privilege does not typically extend to communications between a lawyer and an expert witness. Other states define these roles in their own rules, and in federal court, Federal Rule of Evidence 501 applies federal common law to privilege unless a civil claim or defense is governed by state law, in which case state privilege law applies.

How it can be waived

Confidentiality is fragile. If an unnecessary third party takes part in the communication, the protection can be lost — though someone essential to the representation, such as an interpreter, may not break it. California’s Evidence Code §952, for example, still treats a communication as confidential when it is shared with people present to further the client’s interest or reasonably necessary to transmit it. Forwarding a privileged email to an outside friend for a second opinion is the kind of step that can waive protection. For a disclosure made in a federal proceeding or to a federal office or agency, Federal Rule of Evidence 502(b) provides that an inadvertent disclosure does not waive privilege or work-product protection if the holder took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify it. Disclosures made in state proceedings require a separate analysis under Rule 502(c) and applicable state law.

Inadvertent disclosure and getting documents back

Large document productions make mistakes likely. For disclosures in a federal proceeding, the committee note to Federal Rule of Evidence 502 says courts judge “reasonable steps” case by case, looking at factors such as the precautions taken, how quickly the error was fixed, the scope of discovery, the number of documents and the time available for review. Rule 502(d) also lets a federal court order that disclosure connected with the case is not a waiver, which then carries over to other federal and state proceedings. A private agreement between the parties binds only them unless a court order adopts it.

The procedure for clawing a document back in federal civil cases is in Federal Rule of Civil Procedure 26(b)(5)(B). The party claiming privilege may notify those who received the material. They must then promptly return, sequester or destroy it, must not use or disclose it until the claim is resolved, and may present it to the court under seal for a ruling.

Using a work email account or device

Many people contact a lawyer from a work laptop, phone or email account. Whether that affects confidentiality depends on the governing law and on facts such as your employer’s policies, and this guide does not state a rule. Treat it as a question to raise early: ask your lawyer whether you should use a work account or device for these messages, and how they would prefer you communicate.

Exceptions and limits

The privilege is not absolute. It does not apply when a client seeks a lawyer’s help to commit a crime or fraud. Texas states this crime-fraud exception in Rule of Evidence 503(d)(1): the privilege does not apply if the lawyer’s services were sought or obtained to help anyone commit or plan what the client knew or reasonably should have known was a crime or fraud. The Texas rule lists other exceptions too, such as disputes over a lawyer’s or client’s breach of duty to the other. Other exceptions and limits are jurisdiction-specific; do not assume a communication is unprotected without checking the governing law. Privilege is also different from a lawyer’s duty of confidentiality (an ethics obligation that is broader) and from the work-product doctrine (which protects materials prepared for litigation). Nor does it automatically cover everything connected to a representation: routine billing records, for example, are often not privileged unless they reveal the substance of legal advice.

Work product: a separate protection

The work-product doctrine covers different ground. The Legal Information Institute describes work product as material prepared in anticipation of litigation. Privilege asks whether a communication was a confidential request for or delivery of legal advice. Work product asks whether a document or thing was prepared because of a lawsuit, whether or not anyone gave legal advice.

In federal civil cases, Federal Rule of Civil Procedure 26(b)(3) sets the rule. Materials prepared in anticipation of litigation or for trial, by or for a party or its representative (including its attorney, consultant, insurer or agent), are ordinarily not discoverable. The other side can obtain them only by showing substantial need and that it cannot get the substantial equivalent without undue hardship. Even then, the court must protect the mental impressions, conclusions, opinions and legal theories of the party’s attorney or representative. The LII calls this second category opinion work product and says it is almost never discoverable, while ordinary work product, such as basic facts gathered or witness interviews, may be.

A short checklist

• Is it legal advice? The communication should be for seeking or giving legal advice, not general business talk.
• Is it confidential? Keep it between you and your lawyer (and anyone essential to the representation).
• Who else is on it? Extra recipients or forwarding can waive protection.
• Facts vs. communications. Privilege covers the communication, not the underlying facts.
• Privilege or work product? Materials prepared for a lawsuit may be protected as work product even if they are not privileged communications.
• Ask about work accounts. Check with your lawyer before using a work email account or device to discuss your matter.
• Act fast on mistakes. If privileged material goes out by error, prompt steps to get it back matter under federal Rule 502(b).
• Which rules apply? State and federal privilege rules differ, and in some federal civil cases state privilege law applies; check the ones that govern your matter.

The money side of hiring a lawyer is covered in lawyer retainer fees, and the separate duty to keep relevant records once a dispute is likely is covered in the spoliation guide.

This is general legal information, not legal advice, and it does not create a lawyer–client relationship; privilege rules and their exceptions vary between the states and federal court, so consult a lawyer about how they apply to your situation.