The attorney-client privilege is, very broadly speaking, a client's right to refuse to disclose and to prevent any other person from disclosing confidential communications made between the client and an attorney. The attorney-client privilege is fundamental to the proper functioning of the American justice system. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyers being fully informed by the client.
To support a claim of attorney-client privilege, a communication must be made by a client, to a lawyer, in confidence, and during the course of the attorney-client relationship. Although intended to be confidential, an attorney-client communication is protected only if transmitted “in confidence”—i.e., “by a means which, so far as the client is aware, discloses the information to no” unnecessary third parties. Additionally, communications made between Attorneys and potential clients—i.e., those seeking legal advice, are also protected from disclosure.
Generally, the attorney-client privilege may be waived by voluntarily abandoning the secrecy of the communication. Sometimes, the fact that the communication was made under circumstances where others could easily overhear is a strong indication that the communication was not intended to be confidential and is, therefore, unprivileged. This is what makes it important to speak with your attorneys privately, without disclosing any privileged information to any third parties.
Courts may sometimes also find an implied waiver of privilege where the party claiming the attorney-client privilege has placed a “vitally relevant” communication in issue. If the communication goes to the heart of the claim in controversy, fairness may require that the communication be disclosed.
Further, merely sending non-privileged communication to a lawyer does not make that communication privileged. The act of sending, alone, even when confidential, cannot create the privilege if none, in fact, exists.
Similarly, the attorney work-product doctrine protects from disclosure in discovery any documents prepared by Attorneys in anticipation of discovery. This privilege can also cover attorney reports, and the selection of witnesses to interview by an Attorney.
To preserve the attorney-client privilege, do not share any communications between you and your Attorney with any third party. Further, do not disclose to any third party any documents prepared by your Attorney in anticipation of litigation.