Attorney Client privilege in New York and Federal Courts – the client holds the privilege. Attorney cannot disclose confidential information as directed by the client. Employment lawyers at Berlingieri Law, PLLC holds attorney client privilege as a top priority and treats your personal confidential information with the needed level of care.
Recent events of the politically motivated raid of the President of the United State’s personal lawyer’s New York City office reminds us that“the privilege of confidential communication between client and attorney should not only be liberally construed, but must be regarded as sacred.”
1. FRE 502 must be applied by all federal courts in all federal court
2. FRE 502 applies to communications and information that are subject
to the “attorney-client privilege,” as well as the “work-product
protection.” Thus, it does not change or otherwise alter federal or
state law concerning whether the communications and information are
privileged in the first instance.
3. FRE 502 also requires a state court to follow the Rule’s standards if
the disclosure of a privileged communication occurred in a federal
proceeding or to a federal office or agency, and discovery of that
communication is sought in the state court proceeding. (FRE 502[b]).
4. Where the disclosure of the communication is made in a state
proceeding and is not subject to a state court order concerning waiver
and discovery of that communication is sought in a subsequent federal
proceeding, the earlier disclosure is not treated as a waiver in the
federal proceeding if the standard for waiver of either the relevant
state rule or FRE 502(c) would grant protection.
5. FRE 502 has no application to disclosures that occur solely at the state
The privilege applies only if (1) the asserted holder of the
privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of
the bar of a court, or his subordinate and (b) in connection
with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of
strangers (c) for the purpose of securing primarily either
(i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the
purpose of committing a crime or tort; and (4) the
privilege has been (a) claimed and (b) not waived by the
NY State Law
A. CPLR 4503(a)(1)
1. CPLR 4503(a)(1) codifies the attorney-client privilege. It provides:
Unless the client waives the privilege, an attorney or his or her
employee, or any person who obtains without the knowledge of
the client evidence of a confidential communication made
between the attorney or his or her employee and the client in the
course of professional employment, shall not disclose, or be
allowed to disclose such communication, nor shall the client be
compelled to disclose such communication, in any action,
disciplinary trial or hearing, or administrative action,
proceeding or hearing conducted by or on behalf of any state,
municipal or local governmental agency or by the legislature or
any committee or body thereof.
Evidence of any such communication obtained by any such person, and evidence
resulting therefrom, shall not be disclosed by any state,
municipal or local governmental agency or by the legislature or
any committee or body thereof. The relationship of an attorney
and client shall exist between a professional service corporation
organized under article fifteen of the business corporation law
to practice as an attorney and counselor-at-law and the clients to
whom it renders legal services.
2. CPLR 4503(a(2) abolishes “fiduciary exception” to the attorney client
privilege regarding communications between counsel and
personal representative of a decedent’s estate.
3. CPLR 4503(b) creates a statutory exception to the privilege where the
confidential communication between a deceased client and the client’s
attorney in issue involved the preparation, execution, or revocation of
any will of that client or other relevant instrument.
Clients’ Guide to Attorney-Client Privilege
Most are aware that communications between an individual and his attorney are “privileged”, but few know when and to what the privilege applies, or how it can be lost. Given how important the privilege is, and how damaging the implications of its loss can be, a client with only a little knowledge of attorney client privilege can be a dangerous thing.
In order to provide some understanding of these issues, this article will explain what this privilege is, how it can be lost, and finally some principles a client should keep in mind about attorney-client privilege when interacting with its attorney.
What is the privilege?
Attorney client privilege is one of the oldest, and most important, privileges in law. The privilege is established in all fifty states and in the “common law” of the United States. In fact, a California court has held that “the privilege of confidential communication between client and attorney should not only be liberally construed, but must be regarded as sacred”. The United States Supreme Court has explained that the privilege is essential to permit the “full and frank” disclosure of information by a client to its attorney, without which an attorney cannot provide considered and accurate advice to the client.
The client– and only the client – holds the privilege and the client alone may decide whether the privileged communications may be disclosed. Importantly, no matter how compelling the public interest is in the information, a court cannot order the disclosure of the privileged communications. In fact, the privilege even survives the death of the client.
The privilege is broad and is not subject to any weighing of interests once it attaches. Given the breadth and scope of the privilege, however, certain conditions must be present when the communications are made in order for the privilege to attach. First, the “privilege holder” must be either a client of the attorney, or must have made the disclosures when seeking representation of the attorney. Absent such a relationship, the communications are not privileged.
Second, the person to whom the communication is made must be an attorney, who is acting as an attorney at the time of the communication. While this seems straightforward, the application of the privilege is not always clear. For example, the fact that a person is a licensed attorney may not by itself satisfy this condition if the person is acting in another role, for example as a corporate officer. Similarly, in some countries in Europe “in-house counsel” are not considered attorneys for the purpose of privilege, so even communications to corporate counsel may not be privileged.
Finally, the purpose of the communication must be to seek legal advice. While most applications of this condition are clear, a client must understand that communications are not necessarily privileged if they are not part of seeking legal advice, such as recounting basic facts that were not otherwise confidential, scheduling matters, etc. Further, if the communication would not otherwise be privileged, the client and attorney cannot make it privileged simply by communicating the information to each other.
How is the privilege lost?
Once the privilege exists, the client and his counsel must make certain not to waive the privilege and invalidate it. The easiest way for the client to lose the privilege is by disclosing it to someone other than the attorney or persons working on the attorney’s behalf –such as other attorneys, paralegals, etc.
While the most obvious ways of making such a disclosure is clear (speaking about it in public, providing the information to a third party, posting it on Facebook), other waivers are not so obvious. For example, some clients will communicate with counsel through texts or emails from their employer’s company account, even if the subject of the representation does not relate to their employer. As most companies expressly regard employees’ company emails and texts as company property, such communication will not be regarded as a private, confidential communication and, therefore, will not meet the standard for attorney client privilege.
Similarly, clients should not forward or discuss communications with other parties, such as friends or trusted advisors, who are not attorneys, because doing so would undermine any privilege claim. Even within a business organization, clients should make certain that any disclosure of privileged information is limited to only those individuals who are essential to the representation itself in order to avoid any inadvertent disclosures of the information that could limit the privilege.
Finally, the privilege does not apply if the purpose of the representation is to commit a crime or defraud another person.
What should a client keep in mind?
Attorney client privilege is an essential part of the client’s relationship with its attorney. While the actual application differs between jurisdictions, and is much more complicated than the basic outlines here, the client should bear in mind some basic principles when communicating with its attorneys.
First, the privilege covers consultation even for potential representation. Therefore, if a client meets with a potential attorney, but does not retain the attorney, the communications still are privileged.
Second, the client should make certain to limit any disclosures only to the attorneys. Importantly, not only should a client not include individuals, who are not essential to the representation in any communications, but the client must also be careful about the form of the communication, including what email account, mobile device, etc. that is used. If the client does not have an expectation that the communications are private, the privilege will not attach.
Finally, and most importantly, the purpose of the privilege is to provide “full and frank” disclosure between client and attorney. As such, the client should not hide things from its attorney as the privilege will cover even harmful communications if provided in this context.
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