The mere fact that the practitioner is a lawyer does not create valid solicitor-client privilege with respect to communications that include, for example, business or accounting advice instead of legal advice. Again, not all attorney-client communications are considered privileged once filed in court, so always proceed with caution and continue to communicate in writing as if your document could eventually be used as evidence in court and blown up and presented to a jury. You can`t be careful enough when it comes to the possibility that your own communication with your lawyer will be used as evidence against your own business. If in doubt, pick up the phone and call your lawyer before clicking the “Send” button. To quote Benjamin Franklin`s axiom, an ounce of prevention is worth a pound of remedy. Assuming the lawyer-client relationship is well established, is all communication protected? It also depends. Basic solicitor-client privilege protects the client`s communication with the lawyer. It also extends to reactive communication from the lawyer to the client. However, communication does not need to be as open as an oral or written act. On the contrary, the slightest action or inaction, such as a nod of approval or complete silence, can be a message. 20 The subject-matter of the communication was at the heart of the `subject-matter` test. In the context of this criterion, the courts had to determine (a) whether the purpose of the communication at issue was to obtain and provide legal advice to the undertaking, (b) whether the employee`s hierarchical superior had insisted that the notification had been made by the employee and (c) whether the subject matter of the communication to the lawyer fell within the employee`s duties.
Thus, according to this criterion, the subject matter of the notice to counsel included the employee`s obligations to the company, solicitor-client privilege would cover that disclosure, regardless of the rank of the employee who made the disclosure. See Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), combined with an equally divided court, 400 U.S. 348 (1971). ↩ In most cases, determining the existence of the client relationship is not a tedious undertaking, since in most cases the lawyer has expressly acknowledged the client`s representation. This explicit recognition can be demonstrated by an order letter, a fee contract or even an oral agreement on the scope of the representation. A client relationship may also be expressly recognized by the lawyer`s “appearance” on behalf of the client, including filing court arguments for the client, drafting documents on behalf of the client, or appearing in court as a litigant`s representative.11 Lawyers may disclose confidential information about the guardian if they reasonably attempt to collect payments for services rendered. This is justified by political reasons. If lawyers were not able to disclose such information, many would only do legal work if payment is made in advance.
This would likely have a detrimental effect on public access to justice. In addition to these more traditional political exceptions to the application of privilege, recent events remind us that privilege is not absolute at all. For example, following the events of September 11, 2001, Congress quickly passed the USA Patriot Act, which, among other things, allowed greater authority to conduct searches and monitor activities without judicial intervention.28 The USA Patriot Act led to a number of new bush administration rules and executive orders, including the widely criticized rule of the Bureau of Prisons.29 This rule “empowers the Attorney General to: instruct the [Bureau of Prisons]. Director responsible for monitoring or reviewing communications between detainees and lawyers in order to deter future action that could result in death or serious bodily harm to persons or property. 30 All that is necessary before such a check can begin is “reasonable suspicion. that a particular detainee may use communication between the lawyer and the client to facilitate acts of terrorism. 31 Although the long-term effects of this new rule may not be known, it is recalled that privilege itself is not immune to the political climate in which we live. Exception for crime or fraud. If a client seeks advice from a lawyer to help them promote a crime or fraud or conceal the crime or fraud after it has been committed, communication is not preferred. However, if the client has committed a crime or fraud and then seeks the advice of a lawyer, these communications are preferred unless the client intends to conceal the crime or fraud.
How can a customer feel safe from the potential risk of sensitive information falling into the wrong hands? In an extremely complex and competitive business climate saturated with consultants, technical advisors and external experts, the discerning business owner could stop by to consider one of the fundamental benefits of hiring a lawyer. It is in the nature of things that the lawyer-client relationship has a clear and invaluable right to have communications protected from forced disclosure to third parties, including business partners and competitors, government agencies and even criminal justice agencies. Nevertheless, a client cannot protect certain facts from disclosure simply by communicating them to her lawyer. While information may be collected from a source other than privileged communications, the underlying information itself is not privileged.21 In other words, solicitor-client privilege protects “communications made for legal advice; it does not protect the information transmitted. 22 Both clients and lawyers must take this important fact into account: the mere transmission of something to a lawyer does not prevent the underlying facts from being forced to be disclosed if they can be discovered from a non-privileged source.23 [3] The principle of client-lawyer privilege is implemented by the competent legal bodies: professional secrecy, professional secrecy, the work product doctrine and the principle set out in the code of ethics Rule of confidentiality. Solicitor-client privilege and the work product doctrine apply in judicial and other proceedings where a lawyer may be called as a witness or otherwise asked to provide evidence on behalf of a client. The rule of client-lawyer silence applies in situations other than those where evidence is requested by the lawyer for the coercion of the law. .
