“This conversation is privileged, right?” This is one of the most common questions trial lawyers receive from their clients. Usually business owners and operators can assume that communications with their attorneys are privileged. Sometimes, however, it is unclear when a privilege might apply. As a result, clients should have a basic understanding of the different privileges that protect their communications from disclosure, and the circumstances under which these privileges apply.
The Attorney-Client Privilege
The oldest and most sacred privilege arises during attorney-client communications. This privilege prohibits an attorney from disclosing a client’s information to any outside person, provided that the information is (i) a communication (ii) made in confidence (iii) between a lawyer and (iv) a person who is or is about to become the lawyer’s client (v) for the purpose of obtaining legal advice or assistance.
First, the attorney-client privilege not only extends to individuals, but also protects communications between corporate representatives and the corporation’s lawyer. However, executives must be aware that this corporate extension of the privilege is not absolute. Historically, the privilege applied to a corporate communication only when the communication was between a lawyer and a member of the corporation’s “control group.” Most courts now reject the “control group” approach and conduct a case-by-case analysis to determine whether the communication was for the purpose of providing legal advice to the corporation. If the privilege applies, it is owned and controlled by the corporation and not the individual employee who made the communication.
Although the attorney-client privilege is strictly enforced by most courts, the privilege can be overcome under some circumstances. For example, a client cannot create a privilege simply by communicating a fact to an attorney. If the information already exists or if it can be obtained independently from another source, it is not privileged information.
The attorney-client privilege can be waived. If information is intentionally revealed to outside persons, it is no longer privileged. Even accidental disclosure can result in a waiver of the privilege. This “inadvertent waiver” has become particularly problematic with the emergence of the Internet, text messaging and other technology that provides quick and easy communication. Both lawyers and clients should be extremely cautious when transmitting confidential information through such avenues.
The attorney-client privilege is also subject to a “crime fraud exception.” Although information related to past crimes remains privileged, a communication made to further a future or continuing crime or fraud is not privileged, and can be disclosed to outside sources. Under some circumstances, information about a future crime must be disclosed to the government by the attorney.
The Work Product Privilege
The work product privilege protects from disclosure (i) materials and information (ii) developed by counsel or counsel’s agents (iii) for the client (iv) in anticipation of litigation or trial. In short, the work product privilege protects the mental processes of an attorney during the preparation of a file, and it applies equally to both corporate and individual clients.
Although courts will rarely force the disclosure of an attorney’s opinions, judgments or thought processes, the work product privilege is not as strictly applied as the attorney-client privilege. For example, courts can force attorneys to disclose the facts that form the foundations for their opinions. A party seeking to obtain such information from an attorney by circumventing the work product privilege must show (i) substantial need for the information, and (ii) the inability to obtain it from other sources.
Generally, the work product privilege can only be waived voluntarily. If information is disclosed accidentally to adverse parties, courts will usually require the outside parties to return the information. Nevertheless, work product information should be very carefully guarded. Courts have ruled that when attorneys and clients are too careless and fail to protect their work product, an inadvertent disclosure can be deemed “voluntary,” and therefore, the privilege is waived. More important, adverse parties will not “forget” information that is accidentally disclosed to them. Thus, accidental disclosure of information could result in a significant tactical disadvantage at trial.
The Joint Defense Privilege
In some circumstances, the attorney-client privilege can extend to multiple defendants and allow them to share privileged information among themselves in civil or criminal litigation. Ordinarily, when separate defendants and their attorneys communicate, such a communication would constitute a waiver of the attorney-client privilege. To overcome this waiver and establish a joint defense privilege, the communication must (i) be made in the course of a joint defense effort, (ii) be designed to further the joint defense effort, and (iii) not otherwise be subject to a waiver.
To invoke the joint defense privilege, a written Joint Defense Agreement is advisable. Although a written agreement is not required, a signed written document is more likely to persuade a court that communications are protected by a joint defense privilege. A written agreement also provides notice to all parties regarding the extent of the privilege.
A party to a Joint Defense Agreement can decide to waive the privilege and disclose information. If such a waiver takes place, the party waiving the privilege can disclose only the information contributed by that party. Any information provided by any other party to the agreement must remain privileged.
The Self-Evaluative Privilege
The self-evaluative privilege, or “self-critical analysis” doctrine, is somewhat controversial and has been the focus of increased lobbying efforts. To the extent this privilege applies, it protects information uncovered by a corporation during its own internal investigation of possible wrongdoing. In theory, the privilege encourages efficient execution of justice by allowing corporations to freely investigate themselves and self-report violations in exchange for leniency. Opponents of this theory argue that corporations will use the privilege to shield themselves from punishment for their wrongdoings.
In central Illinois, caution must be exercised in relying on this privilege. Although one Federal District Court in Illinois has acknowledged that the privilege exists, a very recent Illinois State Appellate opinion has concluded that this privilege has not yet been adopted in Illinois. Thus, at this time, corporations in Illinois should not rely on the self evaluative privilege to protect incriminating information uncovered during the company’s own internal investigation. Rather, corporations in Illinois should currently consider retaining legal counsel to conduct their investigations and afford themselves the protection of the attorney-client and work product privileges. iBi