Copyright MoloLamken LLP 2018.Does your jurisdiction recognise or hold a concept of legal professional privilege? What is it called? “Brilliant lawyers with courtroom savvy” – Benchmark Litigation. To learn more about corporate and executive criminal liability, follow us on LinkedIn. Nonetheless, Congress typically agrees not to demand privileged information so stand-offs related to the assertion of privilege before Congress are rare. It has maintained that its members and its committees, through their investigative powers, could compel someone to disclose protected attorney-client communications. Congress, for example, has long asserted that the privilege is a judicial privilege that does apply to Congress. Some might be surprised to learn that not all branches of government honor the attorney-client privilege. A client in doubt about whether certain conduct is within the law is more apt to seek advice of counsel knowing that advice cannot be shared outside the attorney-client relationship. Not only does its guarantee of confidentiality allow for better legal advice, it promotes compliance with the law by encouraging communication. The attorney-client privilege is a foundational component of the American legal system. For example, a lawyer might be more circumspect in discussing whether a client’s course of conduct amounts to fraud if that conversation could be disclosed to prosecutorial authorities or a potential adversary in civil litigation. The privilege also ensures that lawyers can provide candid and frank legal advice to their clients. The attorney-client privilege recognizes that a client is more likely to provide a lawyer with all relevant information – even information that might be embarrassing or unpleasant to discuss – if those communications cannot be further disclosed without the client’s consent. To represent a client effectively, lawyers must have access to all relevant information concerning the representation. The purpose of the attorney-client privilege is to promote open and frank communications between clients and their lawyers. In the corporate context, that means a lawyer’s communications are not privileged when the lawyer is providing business advice. Finally, the communications must be made for the purpose of seeking or providing legal counsel – legal advice.The privilege also covers a client’s communications with individuals who assist the lawyer in the representation, such as a paralegal or an investigator. The client’s communications must be made to counsel – a lawyer.In that case, the privilege protects communications between the company’s lawyer – whether an “in-house” lawyer employed by the company, like a general counsel, or “outside” counsel at a law firm – and the company’s employees so long as the communications fall within the scope of the employee’s duties. It’s enough for the individual to honestly believe he is consulting the lawyer for purposes of obtaining legal advice in advancing his own interests. A formal retainer agreement is not necessary. The communication must be made by a client.Even if such a communication is made in confidence, it loses the privilege. If anyone outside the attorney-client relationship receives the communication – for example, a close friend copied on an email to the lawyer – the privilege is lost. That means the communication is limited to the client and the lawyer.
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