The attorney-client privilege protects communications between a client and his or her attorney from disclosure. The classic definition of the attorney-client privilege indorsed by the Massachusetts Supreme Judicial Court is where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communication relating to that purpose made in confidence by the client are permanently protected from disclosure by the legal advisor unless the client waives the privilege. The privilege exists not only to protect the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.

Privilege Survives Death

When the court says permanently, it means even after death and even when access to protected communications would be historically valuable or significant. For example, as a result of the continuing existence of the attorney-client privilege, correspondence and communications between Lizzie Borden, the woman accused of hacking her father and stepmother to death with an ax in Fall River in 1892, and her lawyer, George Dexter Robinson, to this day remain locked away in a 16th floor office of the Springfield law firm founded by Robinson. Although a jury acquitted Lizzie Borden in about an hour many still believe she got away with murder and that access to the confidential papers could settle the ongoing controversy. In 1998 the Supreme Court confirmed that the attorney-client privilege survives death even in extraordinary circumstances holding that independent counsel, Kenneth Starr could not obtain notes made by the lawyer for Vincent Foster during their two hour meeting eleven days before the deputy White House counsel committed suicide.

Privilege May Frustrate Investigations

In a recent case, the Supreme Judicial Court, noted that the law sees the attorney-client privilege as so highly valued that, while it may appear to frustrate the investigative or fact-finding process and create an inherent tension with society’s need for full and complete disclosure of all relevant evidence it is acknowledged that the social good derived from the proper performance of the functions of lawyers acting for their clients outweighs the harm that may come from the suppression of evidence.

Waiver of Attorney-Client Privilege

The court continued that while the high societal value of attorney client privilege justifies its recognition, the need for broad access to useful evidence requires a narrow construction and the imposition of the burden of establishing the privilege on the party seeking its protection. The privilege may be deemed waived by circumstances or conduct. For example, the participation of a third person during attorney-client conferences, even if that person is a relative of the client, or sharing attorney-client email correspondence with another person generally waives the privilege with regard to that communication. Additionally, by rule disclosure may be permitted to prevent commission of a crime, the wrongful incarceration or execution of another, and to the extent necessary for a lawyer to defend against a claim between a lawyer and client. Therefore, prior to disclosing sensitive information to an attorney, it is always wise to confirm with the attorney that the attorney-client privilege will apply to the communication.

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Category:  Personal Injury