10.02.03. In Confidence [Restatement § 71]

The communication between privileged persons must be in confidence. In other words, it must be in such a way that the person communicating “reasonably believes that no one [other than privileged persons] will learn the contents of the communication.”[1] Thus (and this is the classic example), a communication between a lawyer and client in a loud voice in the crowded hallway of the courthouse is not protected by the privilege – even if the lawyer and client wanted the communication to be confidential – because the facts do not indicate that there was a reasonable belief that the communication was being made in confidence. [2] On the other hand, if the lawyer and client are in a private room at the courthouse and someone eavesdrops on the communication, the communication does not lose its privileged status.

If the communication is not in confidence, then it is not protected by the privilege, and the prosecution can call either the lawyer or the client to the stand, and they will have to reveal the contents of the communication. Notice that the test is reasonableness. Therefore, if a lawyer meets her client in a room in the jail that they know is often monitored and recorded by police officers, the privilege is not lost, so long as the lawyer and client take reasonable precautions to protect the communication.[3]

[1] Restatement (Third) of the Law Governing Lawyers § 71.

[2] Restatement (Third) of the Law Governing Lawyers § 71, cmt. c, ex. 2.

[3] Restatement (Third) of the Law Governing Lawyers § 71, cmt. c, ex. 3.