How to Identify Attorney Client Privilege Exceptions
Identify the real client., Determine whether disclosure would advance the client's interests., Consider whether a legal purpose was stated., Analyze the context of the communication., Understand the difference between attorney-client privilege and...
Step-by-Step Guide
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Step 1: Identify the real client.
In some situations, someone may hire an attorney to advise them on matters related to their representation of someone else.
When the person who hired the attorney is acting in the interests of a beneficiary, the beneficiary may be considered the attorney's real client.This exception is called the "fiduciary exception," because the attorney's client has a fiduciary duty to someone else.
Fiduciaries have a duty to act in the best interests of the people they represent, rather than in their own best interests.
For example, a trustee may come to an attorney for advice on how best to administer the trust.
In this situation, the beneficiaries of the trust may be considered the attorney's real client.
The fiduciary may have hired the attorney, creating an attorney-client relationship.
However, the fiduciary was only asking for legal advice within the context of their role as a fiduciary.
Therefore, the beneficiaries are the attorney's real clients.
You can think of this fiduciary exception as transferring the client's fiduciary interest to his or her attorney. -
Step 2: Determine whether disclosure would advance the client's interests.
Attorney-client privilege typically survives the death of the client.
However, in some situations disclosure of communications between the client and their attorney is necessary to understand what the client really wanted.For example, suppose two heirs are arguing over a clause in a will.
One thinks it shows the deceased person intended them to inherit a particular family heirloom, while the other believes that heirloom is included in her inheritance.
If the deceased person discussed the matter with their attorney, it may be possible to breach attorney-client privilege to reveal their true intent.
Typically in this situation, you need to determine whether the statements made to the attorney would be sufficient to resolve the dispute as the deceased person would have intended.
It can help to think about whether the deceased person would provide testimony to set the record straight if they were alive and able to do so.
If the only surviving information that would resolve the dispute are statements the deceased person made to their attorney, you may be able to get those statements admitted in court as an exception to the attorney-client privilege. , A fiduciary exception only exists for communications between an attorney and a client if those communications occurred for a specific legal purpose.As a practical matter, there must be a legal purpose for the statements to be protected by attorney-client privilege in the first place.
This means that if there is no discernible legal purpose, attorney-client privilege doesn't apply.
If the privilege doesn't apply, there's no need to find an exception.
The most common situation in which this issue arises involves communication between a corporate executive and in-house legal counsel.
Since these in-house attorneys are employees of the company, it's possible they will have discussions with executives that don't have an explicit legal purpose.
Corporate executives can ensure a communication is protected by attorney-client privilege by making an explicit statement that they are seeking information for a legal purpose within the context of the attorney-client relationship.
You may see statements to this effect included as footers at the bottom of corporate emails. , The context within which the client contacted the attorney for advice can shed additional light on whether the communication should be privileged.
This can reveal other situations where maintaining attorney-client privilege would be unfair to the "real" client.Context is particularly important when you're looking at communications between corporate executives and in-house counsel.
If there is a dispute among shareholders of a corporation, for example, you may be able to carve out an exception for communications between an executive and in-house counsel by showing that the shareholders were the real clients of the attorneys.
This is so because executives hold their offices at the pleasure of the shareholders, or the corporation's board of directors.
In this sense, corporate executives may be viewed as fiduciaries of the shareholders.
Their job is to act in the benefit of the shareholders, not for their own personal interests. , Even if communications between an attorney and their client fall within an exception to attorney-client privilege, they still may fall within work-product privilege, which protects notes and other documents an attorney creates in anticipation of litigation.While attorney-client privilege belongs to the client, work-product privilege belongs to the attorney.
Essentially, the fiduciary exception to attorney-client privilege relies on showing that the person who hired the attorney is not the attorney's real client.
Therefore their communications can be revealed to the beneficiaries, who are the attorney's real clients.
However, documents created by the attorney as part of their work, including notes, research or drafts of memos, may be considered attorney work product.
The attorney may be required to testify regarding something the client said, or produce emails from the client to the attorney.
Legal analysis made by the attorney, on the other hand, remains privileged. -
Step 3: Consider whether a legal purpose was stated.
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Step 4: Analyze the context of the communication.
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Step 5: Understand the difference between attorney-client privilege and work-product privilege.
Detailed Guide
In some situations, someone may hire an attorney to advise them on matters related to their representation of someone else.
When the person who hired the attorney is acting in the interests of a beneficiary, the beneficiary may be considered the attorney's real client.This exception is called the "fiduciary exception," because the attorney's client has a fiduciary duty to someone else.
Fiduciaries have a duty to act in the best interests of the people they represent, rather than in their own best interests.
For example, a trustee may come to an attorney for advice on how best to administer the trust.
In this situation, the beneficiaries of the trust may be considered the attorney's real client.
The fiduciary may have hired the attorney, creating an attorney-client relationship.
However, the fiduciary was only asking for legal advice within the context of their role as a fiduciary.
Therefore, the beneficiaries are the attorney's real clients.
You can think of this fiduciary exception as transferring the client's fiduciary interest to his or her attorney.
Attorney-client privilege typically survives the death of the client.
However, in some situations disclosure of communications between the client and their attorney is necessary to understand what the client really wanted.For example, suppose two heirs are arguing over a clause in a will.
One thinks it shows the deceased person intended them to inherit a particular family heirloom, while the other believes that heirloom is included in her inheritance.
If the deceased person discussed the matter with their attorney, it may be possible to breach attorney-client privilege to reveal their true intent.
Typically in this situation, you need to determine whether the statements made to the attorney would be sufficient to resolve the dispute as the deceased person would have intended.
It can help to think about whether the deceased person would provide testimony to set the record straight if they were alive and able to do so.
If the only surviving information that would resolve the dispute are statements the deceased person made to their attorney, you may be able to get those statements admitted in court as an exception to the attorney-client privilege. , A fiduciary exception only exists for communications between an attorney and a client if those communications occurred for a specific legal purpose.As a practical matter, there must be a legal purpose for the statements to be protected by attorney-client privilege in the first place.
This means that if there is no discernible legal purpose, attorney-client privilege doesn't apply.
If the privilege doesn't apply, there's no need to find an exception.
The most common situation in which this issue arises involves communication between a corporate executive and in-house legal counsel.
Since these in-house attorneys are employees of the company, it's possible they will have discussions with executives that don't have an explicit legal purpose.
Corporate executives can ensure a communication is protected by attorney-client privilege by making an explicit statement that they are seeking information for a legal purpose within the context of the attorney-client relationship.
You may see statements to this effect included as footers at the bottom of corporate emails. , The context within which the client contacted the attorney for advice can shed additional light on whether the communication should be privileged.
This can reveal other situations where maintaining attorney-client privilege would be unfair to the "real" client.Context is particularly important when you're looking at communications between corporate executives and in-house counsel.
If there is a dispute among shareholders of a corporation, for example, you may be able to carve out an exception for communications between an executive and in-house counsel by showing that the shareholders were the real clients of the attorneys.
This is so because executives hold their offices at the pleasure of the shareholders, or the corporation's board of directors.
In this sense, corporate executives may be viewed as fiduciaries of the shareholders.
Their job is to act in the benefit of the shareholders, not for their own personal interests. , Even if communications between an attorney and their client fall within an exception to attorney-client privilege, they still may fall within work-product privilege, which protects notes and other documents an attorney creates in anticipation of litigation.While attorney-client privilege belongs to the client, work-product privilege belongs to the attorney.
Essentially, the fiduciary exception to attorney-client privilege relies on showing that the person who hired the attorney is not the attorney's real client.
Therefore their communications can be revealed to the beneficiaries, who are the attorney's real clients.
However, documents created by the attorney as part of their work, including notes, research or drafts of memos, may be considered attorney work product.
The attorney may be required to testify regarding something the client said, or produce emails from the client to the attorney.
Legal analysis made by the attorney, on the other hand, remains privileged.
About the Author
Matthew Richardson
Creates helpful guides on cooking to inspire and educate readers.
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