Checking Your Privilege, Part 2: Attorneys and Clients Can Sorta Talk Openly

Alright folks, so the last time we did this shit it was discussing the concept of a “privilege” in an evidentiary setting. I ran through the basic concepts of what a privilege is, how it must be asserted, who holds the privilege, and the effect of a partial waiver of the privilege. The general idea to take away from all that is there are these things called privileges that allows you to bitchslap the other side when they start coming after that sweet, sweet information they so desperately want, be it during trial or in the hell that is discovery.

Today we’re gonna go a little more in depth and talk about the Attorney-Client Privilege, what it means, and how it is asserted, as well as how you, as the shitheel lawyer in charge of the case, can try to keep that shit from getting into the fucking record in the first place. But first, a war story.

A Tale From the Trenches

Not too long ago I was in a whole mess of litigation regarding a contract with some particularly onerous clauses in it. In the course of the litigation, the opposing party, who I was trying to whack with a stick to collect the money owed like some kind of awesome cash pinata, began claiming that they were a layman and didn’t understand the contracts. This was a bit of a big deal, because the clauses were per se of the sort that wouldn’t have  been normally expected in that type of agreement, and that sort of shit, if undisclosed, can give a person a defense of unconscionability in this jurisdiction.

[For the Muggles, “unconscionability” is a defense to the enforcement of the contract where, boiled down to the simplest “dumb ass” form, the court says “This contract is so patently unfair we’re not going to let you enforce it.” By the way, there’s a lot more to the defense than just that. Please for the love of holy fuck don’t go running around screaming “UNCONSCIONABILITY!”  at your landlord when they come by to collect the rent, okay?]

Essentially, they said they could have, in absolutely no way, known about the clauses of the contract of the meaning of them, as they didn’t have a lawyer review the contract the first time and signed it in a “high pressure” situation. However, at a later date they signed a document reaffirming the agreement. Their statement was the lawyer hadn’t reviewed the initial agreement, only the one where they were reaffirming (saying “Yeah, that’s the deal we had”). It didn’t affect the unconscionability defense…until discovery. Because they didn’t claim privilege on a certain email from the attorney to them, sent before the reaffirmation, that specifically mentioned those clauses.

This showed they were aware of the clauses when they affirmed the agreement, and therefore made my position greater, whereas previously I’d had no clue the attorney was reviewing the information before the reaffirmation was signed, and was actually a little worried about how the court would come down on that matter.

So they disclosed that email, when they really should have arguably claimed privilege on it. to keep it out of my hands and made me fight over it, because it was communication from an attorney to a client, and therefore privileged. But because they didn’t assert the privilege and, in fact, produced the documents requested, they waived it.

It cost them the case.

That shit in mind, let’s talk about the biggest goddamn privilege our profession has.

Attorney-Client Privilege

This is sort of the drunken grandfather of all evidentiary privileges, and the one the layman is the most associated with. What it boils down to, in case your professional responsibility and evidence professors were morons that sort of glossed over it, is any communication made to an attorney in the course of their representation, or while the person is seeking to hire the attorney is privileged. That means we can’t say jack and or shit about the stuff you tell us in the course of an intake interview, and initial phone call, or during the course of representation. This is limited to the extent of the representation under some theories, but under others it’s a really broad privilege.

Why do We Have It? 

The attorney-client privilege grows out of the idea and policy that clients should feel free to speak to their attorneys about matters, and therefore we want to encourage this. This means that Bobby the Blasted Out Meth Addict is free to tell us exactly how many dicks he’s been sucking to score, and we can’t go on Facebook and start talking about that shit. We can’t even disclose information you provide to us to your spouse, much less to the goddamn court.

Think of us like priests.

Drunken, slovenly priests that you have to pay, and we don’t offer absolution only representation and invoicing.

On the bright side, though, we’re ethically forbidden from having sex with our clients, so…lessened chance of molestation!

Who Holds the Privilege?

The client will always hold the attorney-client privilege. This means that, in a future representation, the attorney (you. I’m talking about YOU, shithead) can’t say shit unless specifically authorized to disclose information by the client. An inadvertent disclosure of client information is a big fucking deal, and that’s the reason I fictionalize every goddamn client story I tell on or offline: It flat out is not my place to talk about client information.

Sidenote: This shit really does apply even if shit is in the public record ethically as well. Attorneys should never be commenting on client matters, even if someone can go to the courthouse and get the same fucking information from the file. Protect your ticket, asshole.

Does It Always Apply?

Absolutely not.

The attorney-client privilege only applies to conversations that we expect to be privileged, like, you know, private conversations between the attorney and the client. If you have a third party in the room, that shit goes right out the window. If Bobby wants his mommy in the room during the meeting, Bobby is waiving privilege. Disclosures made in front of a third-party who does not have their own applicable privilege are not privileged communications and are deemed to have been automatically waived.

Additionally, when your client talks about shit publicly that they’ve discussed with you, they’ve waived the privilege. In an age of goddamn Reddit and Facebook, we can see why this shit may be a problem.

So your clients should learn the fine art of shutting the living fuck up and not talking about shit at the goddamn bar. I mean, they won’t. They’re gonna SnapChat an email that sets out your entire defense strategy or something, because fucking clients, but they should definitely be advised to keep their goddamn mouths shut to anyone who they haven’t cleared with you first.

 WHAT ARE THE EXCEPTIONS?

Like everything in law, there are fucking exceptions to the attorney-client privilege. It most definitely is not absolute.

The biggest exception is the crime-fraud exception, which states that communications made to an attorney in furtherance of a crime or fraud are not protected by privilege (prospective crimes or frauds, not retrospective crimes or frauds…talking about shit you did is privileged, seeking advice for shit you’re going to do is not). In other words, you can’t go to your lawyer and seek advice for how to break the goddamn law, get that advice, and then scream “Privilege!” when caught. The court, as Paul Manafort recently discovered, will promptly “Bitch, please!” that shit and order the disclosure of the communication by finding there’s an exception to the privilege.

Frankly, guys, when a client asks you for help committing a crime, your advice should be to not fucking commit the crime and the consequences of committing the crime. Don’t tell them how to avoid punishment while still committing the crime. That’s the shit this exception feeds on. We settled that in front of the U.S. Supreme Court like 85 years ago.  Clark v. United States, 289 U.S. 1, 15 (1933).

Oh, and then there are situations where the attorney is not bound by the ethical requirements to keep information secret and can waive the privilege.

Huh? You said the client holds the privilege.

Sort of. Alright, when we talk about this privilege, what we’re talking about are two different things: an evidentiary privilege, held by the client, and an ethical duty, observed by the lawyer. The two things are the same but not the same, if you catch my drift, and there are definitely situations where an attorney can make the choice to break privilege without facing ethical repercussions. For example, if we reasonably believe you’re about to cause substantial bodily or financial harm to someone based off information you’ve given us, we’re able to ethically disclose this information to authorities.

This is, of course, optional. The only time we’re absolutely required to disclose that information under the Model Rules is when you’ve used us to commit the crime or fraud.

But that’s getting into the ethical privilege, not the evidentiary privilege, and the latter is what we’re talking about here.

Also, we get to waive the privilege when a client fucks us. If a client doesn’t pay up, we get to disclose information to the court as necessary to establish our right to privilege, even if the client doesn’t want us to. We also get to use information provided to us by a client to defend ourselves against disciplinary or civil actions. So if you come after the lawyer, be aware we got a whole raft of shit we can possibly now disclose because you’re being a dick.

But remember, the key word there is “as necessary.” You can’t disclose a client’s affair simply because you want to be an asshole, unless it’s evidence that supports your fees the client is now refusing to pay.

Pay your fucking bills, Muggles.

OH, IT DOESN’T MATTER WHO’S PAYING.

It’s not uncommon that Bob the  Meth Lord will have a relative foot the bill for his legal representation, creating a situation where you have a third-party paying the tab for your services. When that shit happens, they may think they have a right to know what’s going on in the case and what horrible things Bob is admitting to in your office. They fucking don’t, and if they aren’t an otherwise privileged party disclosing that information to them is a waiver of the evidentiary privilege. Take the fucking money from them (in accordance with your jurisdiction’s ethical requirements to gain consent and advise them), but make it really fucking clear neither you or Bob will be telling them shit and they shouldn’t be pressing Bob to tell them shit. Privileges must be fucking preserved better than Admiral Nelson’s corpse.

Fucking google it.

SIDENOTE: THIS IS ABOUT COMMUNICATIONS

The Attorney-Client privilege as an evidentiary privilege is focused on communications with the attorney. That means it doesn’t cover anything other than communications between the client and the lawyer. But there’s a lot of fucking shit that happens in the course of representation that isn’t the result of the client and lawyer talking.

This is where the work product doctrine comes into play, and it’s a protection from disclosure of all the other shit we create and keep in our files in the course of representation. It originated back in 1947 in a case called Hickman v. Taylor , and isn’t officially a privilege. It’s, in fact, much fucking weaker than a privilege. And that makes it not ripe for discussion right now. But we’ll get back to it at some point in the future.

For right now, the important thing to keep in mind is if it’s a communication, you’re going to want to object and assert the Attorney-Client Privilege. If it’s anything other than a communication between your client and you, you’re probably in Work Product Doctrine territory.

That’s All Folks!

That’ll wrap up our discussion on the Attorney-Client Privilege. Next time I’ll talk about the evidentiary protection, and limitation, you find in the Spousal Privilege and the Marital Communications Privilege, which are definitely two different fucking things.

But as a preview here’s a general rule: If you’re a scumbag and just dating, shut the fuck up or get married.

-BB

 

 

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.