Despite all its political considerations and justifications, solicitor-client privilege has a very real practical consequence: the lawyer cannot compel or voluntarily disclose material communicated to him by the client for the purpose of legal advice. Similarly, the client cannot be compelled to testify on matters that are referred to the lawyer for legal assistance.7 So what is the privilege and when does it apply? Solicitor-client privilege is not easy to destroy. However, it is not uncommon for privilege to be challenged in a court case. If you`re involved in litigation, it`s important to ask your lawyer exactly what`s covered so you don`t accidentally destroy solicitor-client privilege. 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. While most courts accept that a corporation`s management has the power to waive solicitor-client privilege, the situation becomes more complicated when the corporation itself asserts privilege while a director or officer makes a disclosure that may result in a waiver. The courts are divided as to whether it is possible to waive solicitor-client privilege if one of its officers otherwise discloses privileged communications. When assessing business waiver, courts use two predominant approaches, including: Solicitor-client privilege refers to legal privilege that maintains the secrecy of communications between a lawyer and his or her client. Solicitor-client privilege is invoked when there is a legal requirement for such communications, such as a request to the lawyer to testify under oath or a request for disclosure. Typically, it includes oral and written legal advice and conversations between a lawyer and his client.
Second, a similar question arises as to who has the authority to voluntarily waive solicitor-client privilege. The answer to this question in most jurisdictions is that the management of a corporation, namely its directors and officers, has the power to waive solicitor-client privilege. In most cases, determining the existence of the client relationship is not a tedious undertaking, because in most cases the lawyer has expressly acknowledged the client`s representation. This explicit recognition can be demonstrated by a mandate letter, a fee contract or even an oral agreement on the scope of representation. An attorney-client relationship may also be expressly recognized by the “appearance” of the lawyer on behalf of the client, including filing pleadings in court for the client, preparing documents on behalf of the client, or appearing in court as a representative of a litigant.11 For example, the Code of Georgia expressly provides that “prima facie lawyers are empowered to: duly represent any case in which they appear”. O.C.G.A. §15-19-7; see also Newell v. Braun, 187 Ga. App. 9, 369 pp. E.2d 499, 501 (1988) (dicta states that “when a lawyer signs an acknowledgement of receipt on behalf of an alleged client, he is then prevented from denying his lack of authority”).
↩ A final consideration arises with regard to in-house counsel. Communication on corporate matters between a corporation`s in-house counsel and the corporation`s external counsel is normally subject to privilege.16 However, if the communication is between a representative of the corporation and in-house counsel, the distinction is less clear. Because in-house counsel often wear multiple hats, courts find it difficult to apply privilege.17 The privilege would extend to all legal advice, but does not protect purely commercial communications.18 Problems arise when communications include both legal and business advice, and courts take different approaches to deciding that: whether or not the privilege should be applied. At the very least, it appears that the court will first try to determine what role the in-house lawyer plays within the company – that of a lawyer or that of a business manager. From there, many courts will review the content of the communication, and this review will lead to different results.19 Therefore, in-house counsel should be careful to separate their legal advice from their business opinions. Although there is no single authority on solicitor-client privilege, it has been defined as follows: “(1) Where legal advice of any kind (2) is sought by a professional lawyer in his capacity as such, (3) the related communications, (4) the communications (5) of the client, (6) are protected at all times at his own initiative, (7) against disclosure by [client] or legal counsel; (8) unless protection is waived. 8 However, these safeguards are not absolute. The following article examines solicitor-client privilege, describes when it applies and when it does not, and highlights other important considerations. Solicitor-client privilege is one of the oldest privileges recognized by U.S. law. It provides important protection for communication between a client and his lawyer. If a client inadvertently discloses information to third parties that would otherwise be protected by solicitor-client privilege, solicitor-client privilege is waived. Depending on the specific circumstances of the disclosure and applicable law, accidental disclosure may act as a “waiver”.
Waiver of privileges by placing privileged communications in a case is not a new concept; However, this happens quite often. In a May 26, 2021 Louisiana Middle District decision, the plaintiff filed a lawsuit related to the deaths of his longtime girlfriend and two-year-old child after a car accident. [4] During the disclosure, the respondents filed a motion for responses to various requests for investigation. The applicant declined to provide answers, arguing that the requested information was subject to solicitor-client privilege. However, the plaintiffs also made several allegations directly related to the information requested by the respondents in their requests for investigation. In essence, the applicants made several claims which could only be proved by examining the information which they did not wish to provide. The district judge agreed with the defendants in considering the enforcement requests and asked the plaintiffs to provide the information. The plaintiffs then sought to revoke the magistrate`s order; However, the intermediate district judge ruled that the magistrate`s decision should stand, as the plaintiffs “challenged” the privileged communication by “making a claim or defense in such a way that he will inevitably be forced to resort to privileged communication in the trial to prevail.” [5] What happens if the communication is passed on to third parties after a privileged exchange between lawyer and client? Has the privilege been waived? Maybe. Unlike a client`s constitutional rights, which can only be waived intentionally and knowingly, solicitor-client privilege can be waived by negligent, unintentional or accidental disclosure.27 Is there an exception? “The reasons to protect the `trust of criminals` cease to operate. if the opinion requested does not relate to past misconduct, but to future misconduct. Zolin, 491 U.S. at 562–63, 109 p.Ct.
2619. between lawyer and client does not extend to communications made “for the purpose of giving advice on the commission of fraud” or a criminal offence. Id. at 563, 109 p.Ct. 2619. “The innocence of counsel does not preserve solicitor-client privilege against the criminal fraud exception.” U.S. v. Chen, 99 F.3d 1495, 1504 (9th Cir. 1996); U.S. v. Doe, 429 F.3d 450, 454 (3d Cir. 2005).
The initial burden of proof lies with the party invoking the criminal and fraudulent exception. U.S. v. BDO Seidman, LLP, 492 F.3d 806, 818 (7th Cir. 2007). The party invoking solicitor-client privilege must then provide a declaration. Solicitor-client privilege belongs to the client, not the lawyer.