Attorney-Client Privilege: Here's what you need to know.

• Author: Groneman, Brooke

The history of attorney-client privilege has its roots in Roman times. Trial lawyers, known in Roman times as advocates, could not be called upon to be witnesses in a trial for which they were taking part. The close relationship between the attorney and his or her client necessitated protection of the communications between the two parties.

Attorney-client privilege was also protected in British courts for different reasons. Attorneys who testified as witnesses against their clients were considered untrustworthy, and their behavior was considered to be, "unbecoming of gentlemen." Today, the reasoning behind attorney-client privilege is to encourage clients to be candid in communications with their attorneys. But there are a couple of things to know about attorney-client privilege.

IT ONLY PROTECTS COMMUNICATIONS RELEVANT TO LEGAL ADVICE

First, attorney-client privilege only protects communications between the lawyer and his or her client that were conducted for the purpose of obtaining legal advice. Information cannot be placed under the protective cloak of privilege merely because it was shared with a lawyer. Courts will look at the primary reason for which the attorney's advice was sought. For example, if the client is seeking the attorney's business advice, in most cases, this communication is not privileged. However, if the client is looking for legal analysis as it relates to his or her business, this can be protected.

Clients often believe simply copying or forwarding an email to their attorney or in-house counsel makes such communication privileged--it does not. Also, a document exchanged between the attorney and the client may be subject to privilege, but the facts themselves are not privileged. So if the facts can be obtained from another source, those facts may be introduced at trial. If you would like to make a discussion more likely to have the protection of attorney client privilege, include questions to your attorney that invoke his or her legal analysis.

IT ONLY PROTECTS CONFIDENTIAL COMMUNICATION

Second, the communication must be intended to be confidential. Clients may forfeit this privilege by acting in a way that indicates they do not care if the communication is private. For example, there are several actions a client ought to avoid if he or she wants to maintain confidentiality. Do not repeat the conversation with the attorney to someone...