Four Strategies for Avoiding Privilege Pitfalls

• Author: John Scott Kingston and Sonette Tracee-Ann Magnus
• Pages: 6-8

American Bar Association, Litigation Section

Commercial & Business Litigation Committee

Fall 2023, Vol. 24, Issue 1

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Four Strategies for Avoiding Privilege Pitfalls

ByJohn Scott Kingston and Sonette Tracee-Ann Magnus

Two fundamental and related aspects of the client-lawyer relationship are the lawyer’s

obligation to protect the client’s secrets and the client’s right to prohibit prosecutors, juries,

and the general public from accessing its legal communications. These related protections are

critical to the American justice system. They allow clients to secure legal advice based on all

relevant information—even information that is potentially damaging or embarrassing for the

client.

Without such assurances of privacy, clients could withhold crucial details, impeding counsel’s

ability to provide sound advice or maintain a zealous defense. A client’s ability to confide in

counsel is critical to the formation of the trust-based relationship necessary to the proper

operation of the American legal system.

Understanding the Basics: Foundational Elements

The foundational elements of the attorney-client privilege are a communication between

attorney and client for the purposes of securing legal advice where the privilege has not been

waived.

This article identifies four crucial areas where legal practitioners must exercise diligence to

avoid pitfalls in preserving the attorney-client privilege and protecting client confidences: (1)

distinguishing legal communications between attorney and client from nonlegal

communications, (2) determining who has authority to speak for an entity client, (3) corporate

representation in internal investigations, and (4) the importance of privilege logs.

Distinguishing Communication: Legal or Not?

Lawyers must be vigilant in distinguishing between professional legal communications and

nonlegal, casual conversations. The intent behind each interaction should be clear. Only those

directly related to seeking legal advice are protected under the attorney-client privilege. When

there is any doubt, the client should be promptly advised of the risk that the communication at

issue could be subject to disclosure. If a client shares sensitive information that is unrelated to

the underlying matter and not shared for purposes of obtaining legal advice, the client should