10.02.01. Communication

The privilege protects “communications,” which are defined as “any expression through which a privileged person … undertakes to convey information to another privileged person and any document or other record revealing such an expression.”[1] This makes it clear that the definition of “communication” is broad, more than just face-to-face discussions between lawyer and client. It protects any communication made between privileged persons for the purpose of obtaining legal representation.  So, if a lawyer instructs a client who is in jail to make a recording of the events that occurred so the lawyer can review it and provide legal advice, and the client’s cellmate informs the prosecutor who takes the recording, the privilege remains attached to the recording/communication and the prosecutor cannot use it.[2] A communication can also extend to non-verbal conduct (a shake of the head or pointing) so long as it is for the purpose of obtaining legal advice.[3]

It is important to note that the privilege protects only the communication itself and not the facts underlying the communication. This may seem confusing, but it’s not. Let’s say that you have been charged with running a red-light, and you hire a lawyer to represent you. At your very first meeting, your lawyer asks you, “Did you run the red light?” and you answer, “Yes.” You go to trial on the charge. At trial, when you take the stand the prosecutor asks you, “Did you tell your lawyer that you ran the red light?” You do not have to answer – the prosecutor is asking about a communication that you had with your lawyer. The prosecutor then asks, “Did you notice that the light was red as you drove down the street?” Now you have to answer. The question no longer relates to a communication with the lawyer, but now it is merely asking about underlying facts. The distinction is critical. A business may not claim business documents as “privileged” merely because they gave them to their lawyer – even though communications (written or oral) about the same documents with the lawyer would be privileged.[4]

Lenny Lawyer represents Clara Client in a breach-of-contract case.  Client has been sued by Polly Plaintiff for breach of a contract to renovate Polly’s house.  In Client’s meeting with Lawyer, he tells Lawyer in confidence about the conversations and interactions between Client and Plaintiff on the job.  At trial, Client takes the stand and on cross-examination, Plaintiff’s lawyer asks Client about her prior conversations with Polly.  Is the information protected by the attorney client privilege? [Restatement (Third) of the Law Governing Lawyers § 69, cmt. d, ill. 2]

No.  While there was a communication to the lawyer, it is not the type of communication protected by the attorney-client privilege.  The conversations regarding the interactions between plaintiff and defendant relate to underlying facts and are not protected by the privilege. 

There are a few categories of communications that courts have held generally are not protected by the privilege. These include: “the identity of a client; the fact that the client consulted the lawyer and the general subject matter of the consultation; the identity of a nonclient who retained or paid the lawyer to represent the client; the details of any retainer agreement; the amount of the agreed-upon fee; and the client’s whereabouts.”[5] The belief is that none of these relay communications to be protected, and they do not become privileged communications merely because their revelations may be unfavorable to the client. There is an exception when revealing one of these facts would directly, or by reasonable inference, reveal a confidential communication. One example of this is the last-link doctrine, which provides that if revealing the information would reasonably lead to the revelation of protected communications. To give an example: client comes to attorney and says that she has not filed tax returns for several years. To stop interest and penalties from running (in the event she is audited), the lawyer writes a check to the IRS for the estimated amount of the client’s back taxes, but does not include the client’s name in the communication. The IRS seeks to have a court compel the lawyer to reveal the client’s name. The court may refuse because requiring the revelation of the client’s name would reasonably lead to revelation of a confidential communication by the client (failure to file returns).[6]

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

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

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

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

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

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