Office of the General Counsel
Office of the General Counsel

Attorney-Client Privilege Information

I.   INTRODUCTION

This short summary provides general information about attorney-client privilege. The summary is intended to be a Saint Joseph’s University campus resource, but it is not intended to be legal advice or to form an attorney-client relationship. The University’s Office of the General Counsel is always available to help respond to specific questions.

 

II.    THE PURPOSE FOR THE PRIVILEGE

The attorney-client privilege is one of the oldest and most respected privileges. It was designed to prevent a lawyer from being compelled to testify against any client, and it still protects confidential communications between clients and their lawyers. The modern purpose is to encourage full disclosure by clients without fear that the information will be revealed to others, so that clients receive the best and most competent legal advice and representation. The privilege extends to agents of either the client or the lawyer who facilitate the communication (e.g., paralegals or secretaries).  

 

III. WHAT IS PROTECTED

The privilege protects communications that are intended by the client to be confidential between that client and his/her attorney. It protects both communications from the client and any advice or other response given by the attorney. The intention of the client with respect to confidentiality is a primary factor in the applicability of the privilege.  

 

IV. WAIVER OF THE PRIVILEGE    

The privilege belongs to the University, not the individual asserting or waiving it. University personnel should therefore proceed carefully when participating in, sending or receiving attorney-client privileged communication not to inadvertently or casually waive the privilege.  The attorney-client privilege is fragile, and may be subject to waiver when the content of a confidential communication is disclosed to a third person with no legitimate need to know the information, even in some instances where the disclosure is inadvertent. A waiver can also occur where the communication takes place in public, or in another less-than-secure environment. Therefore, clients should always discuss with counsel first before forwarding, copying or including others in communications from the Office of General Counsel. 

 

V. WHEN THE UNIVERSITY IS THE CLIENT

The privilege applies to communications between institutions and their lawyers much the same as it does to individual clients. Due to the nature of the entity client (the University), which is not personified in any one individual, the application of the privilege is a bit more complex. A Supreme Court opinion, Upjohn Co. v. United States 449 U.S. 383 (1981) established a "subject matter" test, which included in the privilege any persons required to provide information to form the basis of legal advice, irrespective of where they fell in the entity's hierarchy.

When there is no conflict of interest presented, the entity “client” can be through a particular member(s) of the University faculty or staff who have the need to receive or seek legal advice in connection with their scope of employment at the University.  Therefore, the "client" does not always have to be a high ranking officer.    

 

VI. SITUATIONS TO WHICH THE PRIVILEGE MAY NOT APPLY

Evaluating whether the privilege applies is a situation-specific analysis, but University personnel should be aware of the following scenarios in which the attorney-client privilege likely will not apply: 

A. The Fact of a Consultation:  The privilege typically does not extend to the fact that consultation between attorney and client occurred, nor to the general subject matter of the consultation, but does apply to the specific content.  

B. Lawyer In the Room:  Sometimes a lawyer is called upon to participate in activities that do not necessarily call for legal representation or advice.  In those contexts, the privilege does not apply.  E.g., all conversation in a general meeting is not protected just because a lawyer is in the room. When the lawyer is called upon to play a different role (e.g. investigator) and is not acting as a lawyer, the privilege may not apply.  

C. Documents Provided to an Attorney: Documents do not automatically become privileged simply because they are transmitted to, or reviewed by, an attorney. Correspondence that is forwarded to an attorney for purposes other than obtaining legal advice, review, or input is also not privileged. Therefore, it is important to identify documents that are prepared at the request of or for review by counsel versus business or other documents that are just given to counsel.   

D. Correspondence With Copies to an Attorney: General correspondence does not become privileged just because an attorney is listed among those receiving a carbon or “blind” copy.  In contrast, if the writer is attempting to convey to others within the University having a legitimate need to know the content of an attorney's advice, the correspondence may be privileged.

E. Communication in the Presence of a Third Party:  The privilege only extends to communications the client intends to be confidential.  Communications made in clearly non-private settings, or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted, are not confidential, and therefore are not protected by the privilege. University personnel should therefore be very selective regarding which persons are included in communications that should be covered under the attorney-client privilege. 

 

VII. MAKING THE CALL

Determining when the attorney-client privilege applies, and when it does not, within the context of the University can be complicated. To protect the best interests of the University, University personnel should consult the University’s Office of the General Counsel on how to handle any particular situation.