10.02.02. Made to a Privileged Person [Restatement § 70]

Communications protected by the attorney-client privilege must be between “privileged persons,” defined as “the client (including a prospective client), the client’s lawyer, agents of either who facilitate communications between them, and agents of the lawyer who facilitate the representation.”[1] This element is pretty self-explanatory in the individual context – the privilege only applies to communications between lawyers and clients and the agents of lawyers and clients. So, if you use a translator to communicate with your client, that translator is an agent and the communication remains protected.[2] Paralegals, law clerks, secretaries, and investigators are all agents of the lawyer and communications in their presence remained privileged.

The police arrest Clarence Client and do not allow Client to communicate with his regular legal counsel – Linda Lawyer.  Client asks Freda Friend, a person whom Client trusts to keep information confidential, to convey to Lawyer the message that Laywer should not permit the police to search Client’s home.  If the prosecution wants to put Friend on the stand to testify about what Client told her in that conversation, would the communication be protected by the attorney client privilege? [Restatement (Third) of Law Governing Lawyers § 70, cmt. f, ill. 1]

Yes.  In this situation, the friend is an agent on behalf of the client for the communication.  The participation of the friend is reasonably necessary to facilitate the client’s communication with the lawyer because the lawyer and client cannot communicate directly.  In addition, the client reasonably believes Friend will hold the communication in confidence.  The same would be true the intermediary was a translator.

In the example above, the third-person actually facilitated the communication between the client and the lawyer (delivered the message).  The same would be true with a translator.  For the privilege to attach, however, it is not necessary that the third-party actually deliver the communication.  It is enough if the person is present because of the client’s psychological or other needs.  For example, if the client is a minor and the client’s parents accompany the client to a meeting with the lawyer to assist in deciding how to proceed, the communications between the lawyer/client/parents for the purpose of obtaining legal advice would be protected by the privilege.[3]

There are three situations in which the question of whether the communications are privileged is more difficult. The first is when the client is an organization.  When representing a client, the client is the organization.  Of course lawyers have to act through those who run the organization.  The question arises:  what individuals are considered speaking for the organizational client such that their communications are protected by the privilege?  This was the issue is discussed below and in the Upjohn case in the Readings.

The second is where a person consults with a lawyer about taking their case, and either the lawyer refuses, or the individual decides not to hire the lawyer.  Are those communications protected by the attorney client privilege? The answer is yes. Although no attorney-client relationship is formed, there is the same need to encourage individuals to feel fully disclose and to ensure that lawyers do not disclose those communications.[4]

Third is when a client talks to someone who is not a lawyer about a legal problem and whether those communications are to a “privileged person.” The general rule is that you look at the reasonable expectations of the client. If it was reasonable for the client to believe the person was a lawyer, then it will be protected. Therefore, where communications are between a lawyer licensed in another jurisdiction, licensed in a foreign country, and one case where the lawyer has allowed his law license to lapse, so long as it was reasonable for the client to believe they were speaking with a privileged person it will be protected by the privilege.

[1] Restatement (Third) of the Law Governing Lawyers § 69, cmt. g.

[2] Restatement (Third) of the Law Governing Lawyers § 70, cmt. f.

[3] Restatement (Third) of the Law Governing Lawyers § 70, cmt. f, ill. 4.

[4] Restatement (Third) of the Law Governing Lawyers § 70, cmt. c.