Volume 13, Number 4 · October 2003

Protecting Client Privacy?

By Charles C. Keller

Editor's Note: This is the fifth and last of a series of articles dealing with privacy issues. The four prior articles dealt with privacy in medical records, court records, the use and monitoring of e-mail , and protecting juror privacy.

In a lawsuit, each party ought to have full and free access to all the facts of the case. Right? Wrong! All Courts in the United States recognize certain information is private and therefor privileged. But the protection of confidential information is the exception and is carefully limited.

Perhaps the oldest confidentiality exception to the common law was the attorney-client privilege. Additions to this protected privacy have been extended to some degree to physician-patient, priest or preacher-parishioner, accountant-client, etc. relationships. This privacy privilege is based on the need for complete candor in seeking and delivering professional services and on balance, the benefit to society is viewed as exceeding the cost or any loss.

In Pennsylvania, confidentiality, of disclosures between a lawyer and the client are protected by law and also by the strict language of Rule 1.6 of the Rules of Professional Conduct administered by the Disciplinary System under the Pennsylvania Supreme Court, which binds all lawyers. A lawyer may not reveal and cannot be required to reveal confidential communications, even in trial or discovery. The protection extends to the attorney's work product, which is related to the client communication.

But remember, this privilege is narrowly defined:

It belongs to one who is or seeks to become a client,
The communication is to a lawyer or subordinate but not in the presence of a stranger;
It is communicated to obtain a legal opinion or assistance, not just for casual advice;
The privilege must be asserted and not waived by the client.

In application, the Courts recognize certain rules. The communication may be oral, in writing or other understandable form, even a nod of the head. Records and memoranda are not privileged unless they convey the essence of a privileged communication. Facts learned in an investigation by the attorney are not privileged unless the investigation is at client's behest and carried out to support legal advice.

Corporations or entities are entitled to the privilege and it applies to communications from officers or managers in controlling management positions. The privilege benefits only the entity and not the individuals. It stays with the corporation even if the officer leaves or a merger occurs.

Often, communications between client and attorney are intended to be shared with others, as in setting a negotiating price. Such communications are not intended to be private and do not qualify as privileged. Likewise, sharing confidential data with a third party, even a consultant, will likely waive the protection of the privilege.

Universally, a communication will not be protected if a crime or fraud is threatened. In Rule 3.3 of the Rules of Professional Conduct, a lawyer is bound, as a matter of "Candor to the Courts," to disclose information necessary to avoid a criminal or fraudulent act by the client. Likewise, information to prevent or rectify such acts, where the lawyer's services are or were in the past used, must be revealed.

Neither will the privacy of a client communication survive if the client begins a malpractice claim against the lawyer. Similarly, if the client injects a lawyer's assistance or advice into a civil dispute not involving the lawyer, the privilege will be lost. For example, if an insured and insurance company contest policy coverage, any party asserting it acted on "the advice of counsel" waives any claim of confidentiality. Courts treat this waiver as "forensic fairness." One cannot claim "we got legal advice" without agreeing to full disclosure of the advice given by counsel and the circumstances.

In this era of big dollar litigation in malpractice, class actions, corporate activity and fraud investigations, lawyers and their clients are under great stress to make maximum disclosures. But both fairness and the need for candor mandate the careful but vigorous protection of the client's age-old right of privacy for confidential, privileged communications.

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