Why is attorney client privilege important

Also, adding your attorney to an email does not automatically protect the email as privileged — the communication must be for the purpose of requesting or receiving legal advice or services. If the communication is confidential, relates to legal advice and something you would not want discoverable in litigation, keep it between you and your attorney.

It is better to play it safe, because once the communication is sent to a third party, the privilege is waived and there is no undoing it. While privilege may need to be waived to raise a defense or claim, it is important to protect attorney-client privilege unless your attorney advises you that waiving it would be necessary or advisable. What is protected under attorney-client privilege and when is it in effect? Why is attorney-client privilege important?

How do clients waive the attorney-client privilege? In our next Insight we will put the same questions to English lawyers to compare and contrast the approach to privileged communications in these two key jurisdictions. The privilege originated in early English law and was later adopted by the American legal system. The privilege recognizes that sound legal advice or advocacy United States , U.

While the privilege is not contained in the United States Constitution, its federal common law origins are acknowledged in the Federal Rules of Evidence FRE see FRE Sections and it is a bedrock legal doctrine recognized by all federal and state courts in the United States.

As long as communications are protected by the privilege they are completely protected from disclosure to any other party. The attorney-client privilege is perhaps all the more important in the criminal context where full and frank discussions with counsel are essential to ensure that an individual can be defended against prosecution or incarceration. It is important to note that business entities have no Fifth Amendment rights even though their individual employees do.

See Braswell v. United States, U. No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence:. See Teleglobe Communs. BCE, Inc. In re Teleglobe Communs. See NLRB v. United Shoe Mach. In addition to protecting communications, the legal privilege extends to legal opinions work product formed by counsel during representations of the client even if the opinions have not been communicated to the client.

However, the privilege does not attach to facts relayed to counsel such that a client could protect bad evidence simply by providing it to counsel. The communication itself would be privileged but the client could still be compelled to testify regarding the facts within the communication absent a Fifth Amendment right to refuse.

See Bofi Fed. Bank v. Erhart , U. The US Supreme Court has long held that the attorney-client privilege applies to both individual and corporate clients. See Gardner v. Major Auto. Louisville Nashville R. However, complications in the application of the privilege arise when the client is a business entity. Business entities must consider how far the privilege extends or risk losing it altogether.

In Upjohn , the Supreme Court held that communications made to in-house counsel by employees during an internal investigation of illegal conduct, made at the direction of management for the purposes of rendering legal advice, are protected by the attorney-client privilege. In arriving at its conclusion the Court reasoned that lower level employees will often be involved in conduct creating serious liability for the company and will possess information crucial for counsel to understand in order to provide proper legal advice.

The privilege also generally applies to communications between counsel and former employees. Executive compensation and employment attorneys deal with C-suite executives who are smart, knowledgeable about their own businesses and areas of expertise, and generally quite sophisticated.

As a result, it is easy to assume that these same executives have extensive experience with lawyers and have no need of instruction on the nature and scope of the attorney-client privilege, and how that privilege must be carefully protected for the benefit of the executive client.

We have found that assumption to be unwarranted, and so routinely begin our discussions with a new executive client with a review of the most important principles underlying this important issue. Preserving the attorney-client privilege to the fullest extent possible permits, as it was explicitly designed to do, the free and open interchange of impressions, ideas and opinions between the executive and his or her attorney.

Very often, one important task of the executive employment lawyer is to make certain that the executive is contractually entitled to receive the compensation, benefits, retirement contributions and incentives equity and otherwise which he or she thinks has been promised by the employer.