THE ATTORNEY-CLIENT PRIVILEGE
The attorney-client privilege has preserved the confidentiality of communications
between lawyers and clients since the days of Elizabethan England. It was
originally designed to prevent a lawyer from being compelled to testify against a
client. The modern purpose is to encourage full disclosure so that the client
receives the best and most informed legal advice, without fear that the
information will be revealed to others. The privilege extends to agents of either
the client or the lawyer (e.g., secretaries.) The privilege applies to institutions as
well as individuals. Thus, communications that W&L “agents” (trustees,
administrators, faculty, staff, and students) have with University attorneys, in
confidence, for the purpose of obtaining legal advice about University matters
are protected by the attorney-client privilege.
WHAT IS PROTECTED
The privilege protects (1) oral and written communications, including electronic
communications, (2) between an agent of the University and an attorney from the
Office of General Counsel (3) for the purpose of requesting or providing legal
advice on University matters. Thus, the contents of a memorandum from a
faculty member to General Counsel seeking advice on the copyright implications
of certain course materials would be protected by the attorney-client privilege,
while the contents of a memorandum from a faculty member to his department
head on the same issue would not.
WHAT IS NOT PROTECTED
The fact that a consultation between attorney and client occurred and the
general subject matter of the consultation are not privileged, only the
content of the communications.
The mere fact that a lawyer is called upon to be present or participate in a
discussion/meeting does not make all communications privileged. Only
such portion of communications where legal advice is sought or discussed
will be privileged. Where a lawyer is called upon to play a role other than
as counsel (e.g., investigator, business advisor or other general, non-legal
consultant), the privilege may not apply.
Documents sent to or reviewed by an attorney are not automatically
privileged; they must be forwarded to the attorney for the purpose of
obtaining legal advice.
Communications made in “public” settings, or in the presence of third
parties without a legitimate need to know otherwise confidential
communications, are not deemed confidential, and are not privileged.
Confidentiality is the key to preserving the privileged nature of the
WHEN TO SEEK PROTECTION UNDER THE PRIVILEGE
In anticipation of potential litigation;
Prior to (and, as needed, during) the investigation of conduct that may
raise legal concerns;
In connection with compliance and risk management programs;
As needed with any other University matters where legal advice may be
helpful and confidentiality is critical.
INVOKING THE PRIVILEGE IN ORAL COMMUNICATIONS
When the purpose of any meeting is to obtain or discuss legal advice, or
to gather information needed to obtain legal advice, it is best to have an
attorney from the General Counsel’s Office present for the discussion,
either in person or via telephone. Only officials who have a legitimate
need-to-know should attend such meetings. Do not disclose privileged
communications in meeting minutes or memoranda.
Avoid discussing attorney-client communications in places where you
could reasonably expect to be overheard.
INVOKING THE PRIVILEGE IN WRITTEN COMMUNICATIONS
Identify and assert the privilege on the document by marking the
document at its heading, “Attorney-Client Privileged Communication.”
Send the document to a University attorney and limit distribution to those
with a legitimate need-to-know. Identify all recipients on the document, no
Treat the document and all information contained on computer disks, hard
drives and back up systems as confidential and maintain securely.
In case of an inadvertent disclosure, immediately consult General
Counsel, advise the recipient that disclosure was inadvertent, and request
return of written materials.
QUESTIONS? CONTACT THE OFFICE OF GENERAL COUNSEL, x8941.