Confidentiality and Communications with Attorneys



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Robert W. Fuller
Robinson Bradshaw Publication
April 24, 2018

If you've been reading about Michael Cohen and are confused about the attorney-client privilege, you are not alone. Unfortunately, most of the news reports haven't helped clarify the rules, and some have been dead wrong. Fortunately, the basics aren't hard to explain – and are important to understand and keep in mind when you're interacting with a lawyer about legal matters.

If there is no court (or similar) proceeding, applicable ethics rules in North Carolina and most other states prohibit attorneys from revealing "information acquired during a professional relationship," except as otherwise required by law, without client permission, to prevent a crime or bodily harm, to get legal advice themselves or to defend a claim by the client. So, unless you're planning a crime or know a dam is getting ready to break, your lawyer is your confidant.

In a court proceeding, only information protected by the attorney-client privilege remains confidential. In most courts, the attorney-client privilege protects communications between counsel and a client for the purpose of seeking or providing legal advice and counsel, and not for the purpose of committing a crime or tort. ("Tort" is a legal term for a wrongful act, not a pastry.) Business communications and advice are not privileged. And a client who shares the confidential information with others waives the privilege.

Despite common misconceptions, in most courts and in most situations, the identity of the client, subject matter of the communication and legal fees charged are not privileged. In addition, the privilege protects communications, not facts. The court may not force you to testify that you told your attorney you saw someone commit a murder or that your attorney advised you that you were in legal trouble. The privilege does not keep you from being asked in court if you saw the fatal shot.

Courts don't often permit subpoenas (or the equivalent) to be issued to attorneys to avoid undermining the attorney-client relationship and the difficulty of separating privileged communications from non-privileged information. If there is no other source for the information, attorneys may have to step up and fulfill the same duties that apply to all citizens, and furnish unprivileged documents and information to facilitate the administration of justice.

Confidentiality and privilege rules don't restrain the client, who is always perfectly free to disclose his or her own information.

The rules vary from state to state and court to court. If a corporation or entity is the client, communications with lower-level employees may or may not be privileged. If there is more than one client involved in a communication, written disclosures and agreements limiting disclosure and use of shared confidential information may be prudent. Involving accountants and advisers without waiving the privilege may or may not be possible. Multivolume treatises address legal details, quirks and traps for the unwary. But knowing the basics is important because assuming that just having an attorney involved affords a cloak of confidentiality can lead to an embarrassing situation, or worse, if inconvenient facts and information become public in a court proceeding.

Be sure to consult your own attorney to understand the rules that apply in your situation, or if you have questions.

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