Client Privilege Breach: Sharing Boundaries Explained

The attorney-client privilege is a rule that protects the confidentiality of communications between lawyers and clients. The client holds the ultimate authority to assert or waive this privilege. While the lawyer can never divulge the client's secrets without their permission, the client can forfeit the privilege by repeating a conversation with an attorney to someone else, or by allowing a third person to be present during a conversation with the lawyer. However, there are exceptions to this rule, such as when the third person is present to aid the client's legal representation or when the client and attorney are discussing the furtherance of a crime or fraud.

Explore related products

Separation, Confidentiality, and Noncompetition Agreement and Release Letter for Exiting Employee

$14.95

Confidentiality & Record Keeping in Counselling & Psychotherapy (Legal Resources Counsellors & Psychotherapists)

$40 $47

Legal and Ethical Aspects of Health Information Management (MindTap Course List)

$63.54 $207.95

Medical Confidentiality and Legal Privilege (Social Ethics and Policy)

$68.99 $68.99

Client Confidentiality and Privileged Communications (General Counsel Law Notes)

$19.99

Legal Aspects of Patient Confidentiality 2nd edition (Legal Aspects Series Book 3)

$30.99

Third-party involvement

The involvement of a third party in attorney-client communications typically waives attorney-client privilege. However, there are exceptions to this rule, and the presence of a third party does not always constitute a breach of privilege.

The "common interest" doctrine is one such exception. This doctrine applies when:

• A communication is made to a third party who shares a common legal interest;
• The communications are made to further that legal interest; and
• The privilege is not otherwise waived.

For example, in Rodriguez v. Seabreeze Jetlev LLC, the court found that the common interest doctrine preserved privilege with respect to communications with non-party witnesses who were beneficiaries to the estate in question, as they had agreed to pursue a joint legal strategy. However, the court did not preserve privilege with regard to communications with non-party witnesses who were not beneficiaries.

The "functional equivalent" doctrine is another exception, which applies when a consultant serves as a de facto employee of a company. In Walsh v. CSG Ptrs., LLC, the court found a waiver of privilege due to a lack of evidence that the consultant served as a de facto employee, but still allowed some information to be redacted under the common interest doctrine.

A third exception is the Kovel rule, which applies when a third-party advisor, such as an accountant, clarifies communications between the attorney and client.

In some cases, the presence of a third party who has a close relationship with the client and serves an essential role in facilitating communication between the attorney and client may not waive privilege. For example, in a civil case, a mother dealing with litigation related to a traumatic event brought her daughter to meetings with her attorneys. The daughter chose the law firm, transported her mother to the meetings, and helped her communicate with the lawyers. The court found that the daughter's presence did not waive privilege as she was necessary to protect her mother's interests.

On the other hand, a Missouri court found that a defendant charged with second-degree murder had waived privilege due to a family member's presence at a client-lawyer meeting. In this case, the family member was not necessary to facilitate communication or protect the defendant's interests.

It is important to note that the law on attorney-client privilege can vary between states, and it is always best to consult a lawyer for advice on this complex issue.

Common interest exception

The common interest doctrine is an extension of the attorney-client privilege, allowing separately represented parties with shared legal interests to communicate with each other and their respective attorneys without compromising the attorney-client privilege. This doctrine is often misunderstood and is not a separate privilege but a notable exception to the general rule that the attorney-client privilege does not apply to communications with or in the presence of third parties.

The common interest privilege applies when two parties are represented by the same attorney in a single legal matter, and neither client may assert the attorney-client privilege against the other in subsequent litigation if the subsequent litigation pertained to the subject matter of the previous joint representation. The common interest doctrine applies only when the common interest participants are actively engaged in a joint effort or strategy to further their common interests.

The common interest privilege allows one group of clients and their counsel to communicate confidentially with another group of clients and their separate counsel without the requirement of active litigation. The legal nature of the communications must predominate over other interests, such as business or personal interests. The common interest privilege only applies where each separate client group has its own attorneys. If a group of clients and their attorneys communicate with an unrepresented party, there can be no common interest privilege.

The common interest doctrine is not an independent privilege, and some courts hold that it does not apply to communications between two parties when an attorney is not involved. Privileged information should be disseminated as little as possible, and clients should be informed that sharing information with consultants, advisors, or other businesses will likely waive any privilege unless it enables them to pursue a joint legal strategy.

Death of a client

In the unfortunate event of a client's death, the attorney-client privilege generally persists, and lawyers remain bound by their duty of confidentiality. This means that lawyers cannot divulge their deceased client's secrets or share information about their case without facing professional discipline and possible disbarment. However, it is important to note that the attorney-client privilege can be waived after a client's death in certain instances.

The attorney-client privilege is a fundamental legal concept that protects the confidentiality of communications between lawyers and clients. This privilege exists to encourage clients to openly share information with their lawyers, allowing for effective legal representation. While the privilege typically survives the client's death, there are situations where it can be waived or breached.

In most cases, the personal representative or executor of the deceased client's estate may have the authority to waive the attorney-client privilege. This typically occurs when there are disputes involving the drafting of a will or trust that is challenged by individuals with standing after the client's death. While the personal representative can waive the privilege, they may not have standing to sue the lawyer for breach of confidentiality.

It is important to note that there are exceptions to the attorney-client privilege, even during the client's lifetime. For example, if a client communicates with their lawyer about committing a future crime or act of fraud, the privilege typically does not apply, and the lawyer may be required to disclose this information to prevent the crime or harm. Similarly, in situations where there is a dispute over the interpretation of a will or other legal documents, the lawyer may be compelled to disclose certain information to resolve the dispute.

In summary, while the attorney-client privilege generally survives the death of a client, there are circumstances where the privilege can be waived or breached. Lawyers must navigate these situations carefully, balancing their ethical duties with the legal requirements of their jurisdiction.

Explore related products

Confidentiality (Scope of Practice)

$12.99 $12.99

Model Rules of Professional Conduct, 2025 Edition

$37.95

Confidentiality & Record Keeping in Counselling & Psychotherapy (Legal Resources Counsellors & Psychotherapists)

$122

Public confidentiality and legal education manual(Chinese Edition)

$28

Non-Disclosure Agreement Form Book: 75 Confidentiality Biding Contact For Employees, Employers, and Business Partners.

$7.99

Privilege

$14.99 $16.81

Crime or fraud

The attorney-client privilege is a privilege that protects most communications between clients and their lawyers from discovery or disclosure. However, this privilege is not absolute and is subject to certain exceptions, including the crime-fraud exception. This exception comes into play when a client seeks advice from an attorney to facilitate or conceal a crime or fraud. The exception also applies when a client communicates with an attorney with the intention of committing or covering up a crime or fraud.

The crime-fraud exception is based on the rationale that advice sought or given in furtherance of a fraudulent or unlawful goal is not worthy of protection. The exception applies even if the attorney is unaware of, or does not participate in, the actual crime or fraud. It is important to note that the client's intent determines whether the exception applies, and courts will consider the content and context of the communication to make this determination.

Communications about past crimes and frauds are generally privileged, while communications about ongoing or future wrongdoings are not. However, courts are more likely to apply the exception when the intent is present rather than future. Additionally, the exception does not typically apply if the client is merely seeking advice about the potential consequences of a future action.

In some states, the crime-fraud exception is not limited to crimes and fraud but can also extend to civil torts. For example, if a landlord sought legal advice on how to unlawfully evict a tenant. Furthermore, the exception may also apply to intentional breaches of fiduciary duties, as some jurisdictions consider these analogous to the tort of fraud.

It is worth noting that the attorney-client privilege is waived when communications are shared with a third party. However, in the case of corporate clients, attorney-client privilege may extend to discussions with non-attorney employees when information is sought at the attorney's direction or when legal advice is being conveyed.

Corporate clients

In the corporate context, the attorney-client privilege exists between outside counsel and the corporation. However, invoking this right by a corporation is more complex than when an individual is involved, as a corporation acts through representatives like officers, directors, and employees. The attorney-client privilege protects confidential communications between a lawyer and their client seeking legal advice or services. This includes verbal discussions, written correspondence, emails, text messages, and other forms of communication.

For corporate clients, the attorney-client privilege is a matter of corporate control, with corporate management or the "control group" deciding whether to assert or waive the privilege. This typically includes officers and directors of the company. If there is a change in corporate control, the privilege passes to the successors, not remaining with the former management.

The presence of a third party during privileged communication may compromise confidentiality unless they are essential to the attorney-client relationship, such as an interpreter or a "communicating agent" like a tax expert. In the corporate context, an attorney's discussions with an employee may be shared with other non-attorney employees when information is sought at the attorney's direction or when legal advice is relayed.

Courts have employed the "subject matter test" and the "control group test" to determine when the attorney-client privilege applies when a corporation is the client. The current trend focuses on whether the matters discussed are encompassed by the corporate duties and responsibilities of the employee. For example, if the president or CFO of a company discusses tax exposure or potential liability with an attorney, the privilege likely extends to these communications. However, if the same discussion is initiated by an accounting manager, the situation becomes less clear.

There are exceptions to the attorney-client privilege, such as when a client seeks advice to further a crime or fraud, or when public policy interests, such as protecting a child, override confidentiality. Additionally, some states mandate or permit attorneys to disclose information to prevent death, serious injury, or financial loss due to crime or fraud. The death of a client may also result in a breach of privilege if litigation ensues between the decedent's heirs or other claiming parties. Furthermore, a corporation's right to assert the privilege is not absolute, as shareholders may, in certain cases, pierce the corporation's attorney-client privilege.

To maintain privilege, communications must be reasonably intended as confidential, and courts will consider the circumstances to determine this intent. Inadvertent disclosure may not constitute a waiver of privilege if reasonable measures were taken to prevent it and prompt remedial actions were taken upon discovery. Additionally, agreements between parties can ensure that disclosure does not waive privilege, especially when incorporated into a court order.

Frequently asked questions