The Privilege is Yours: The Meaning of Attorney-Client Privilege

Attorney-client privilege is a term that applies to the right of an individual to have information given to his or her attorney kept confidential.  Whether communications between an attorney and his or her client are protected under the attorney/client privilege is a matter of state law and federal law. Regardless of which state’s law applies, there are generally two inquiries to be made: 1) With whom is the communication? 2) What is the subject matter of the communication? In Illinois, attorney/client communications are protected where: legal advice of any kind is sought; the communication is from an attorney in his or her capacity as an attorney; the communication relates to that purpose; and the communication is made in confidence by the client.

The (attorney-client) privilege is yours and your alone. It is also, therefore, yours to waive. If a client and his or her attorney communicate, either in writing or verbally, about legal issues, those communications are protected. A confidential communication between an attorney and his or her client must be just that, a confidential communication between the attorney and his or her client only. We often have clients ask that others, such as spouses or other trusted individuals, sit in on meetings about legal issues. If another person who is not the client becomes involved in discussions of legal issues, those communications will likely not be protected as an attorney/client communication. Likewise, if a client shares the communication with another person, the privilege no longer exists as the communication is no longer confidential.

What about health care providers such as hospitals or group practices that are corporations or limited liability companies and their communications between their attorney and their employees, managers, officers, etc.? In that situation, Illinois law looks to whether the communication is between the attorney and a member of the client’s “control group”. The control group, as defined by the Illinois Supreme Court, includes decision makers and top management or direct advisors to top management and the people the decision makers rely on for opinions and advice. Consequently, communications between a provider’s employee, who would not be considered a member of the control group, and the organization’s attorney will not be protected, even if the communication (i.e., what the employer tells the attorney) relates to a legal issue.

When communicating with your attorney, to protect your communications from possible disclosure, here are some tips to remember:

• Keep the discussions confidential. By that we mean, don’t get off the phone, leave the meeting, etc., and tell another person about what was said.
• When you receive a written communication from your attorney, for instance an email, do not forward it to another person. Once it is forwarded, it is no longer confidential. You may share with another what your position is on a certain issue even if that position is arrived at as a result of confidential communication with your attorney. Articulating your position on a legal issue does not, by itself, implicate, the contents of your communications with your attorney.
• If in Illinois, keep in mind that, although you may want your attorney to discuss an issue with an employee, if that employee is not a member of the control group as defined by Illinois law, the discussion may not be protected from disclosure.

Your relationship with your attorney is an important one. Protecting the privilege strengthens that relationship to work in your best interests.

For further information please contact us.