The “attorney-client” privilege is fundamental to the relationship between a client and their attorney because it encourages clients to seek and receive legal advice that assists them in protecting their rights and complying with the law.
Attorney-client privilege is a legal doctrine that can prevent litigation opponents from using litigation’s discovery process to force disclosure of certain confidential communications that occurred between a client and the client’s attorney. Such communications also can be protected from admission into evidence during a trial and from forced disclosure to the government. The privilege is based on the U.S. legal system’s recognition that preserving confidentiality of such communications encourages clients to engage in full, frank, and uninhibited dialog with their attorneys, who are then better able to provide candid legal advice and effective representation.
Generally, the attorney-client privilege arises when a client or potential client seeks legal assistance from a licensed attorney. The privilege then applies (or “attaches”) to each related confidential communication that results. Protectable communications can include legal research, analysis, inferences, theories, opinions, conclusions, strategies, and tactics, along with draft documents that incorporate or describe such things. The privilege can be particularly important to the client when the communication includes legal advice or services that can be construed negatively or taken out of context by the government or an opponent regarding a legal right or responsibility of the client.
Privilege can be “waived” (i.e., destroyed) by breaching the confidentiality of the communication. Privilege can be waived intentionally or inadvertently, and once waived the privilege is destroyed forever and for all purposes.
Most courts have ruled that privilege is waived when otherwise confidential communications are shared with outsiders such as financial advisors, consultants, bankers, potential investors, marketers, etc. Once the privilege is waived, it is waived not only to that specific communication, but potentially to any communication involving the same general topic. In other words, disclosing a single privileged communication can destroy the privilege of many related communications. Conversely, if not waived or destroyed, attorney-client privilege survives indefinitely – even after the attorney-client relationship ends (e.g., voluntary termination, death, etc.).
In the patent context, protecting the attorney-client privilege from waiver can be vital when discussing issues regarding inventorship, ownership, patentability, infringement, preparing and prosecuting patent applications, and required disclosures to a patent office.
In the trademark context, maintaining the attorney-client privilege for communications regarding use of a mark, prosecuting registration applications, required disclosures to a trademark examiner, infringement, and enforcement strategies can be of utmost importance.
It goes without saying that by their very nature, the confidentiality of trade secrets must be maintained, regardless of whether the attorney-client privilege also attaches to communications that include those trade secrets.
So, what’s the bottom line?
To protect the attorney-client privilege, your company should keep confidential (from any outside party) each communication to your attorney seeking legal advice, and each communication from your attorney that responds to that request for legal advice. Allow such a communication to be disclosed only to attorneys representing you or to people within your organization who have a “need to know” the content of that communication. If there is a need to pass along facts included in that communication to others, those facts should be presented without reference to the communication or the attorney it involved. In other words, extract the facts, present them without any accompanying legal advice, and present them with only your name mentioned. This applies equally to verbal and written communications.
For example, rather than saying “My attorney says that…”, one can say, “I understand that…”.
If there’s ever any doubt, check with legal counsel before disclosing a potentially privileged communication (or any legal advice it contains) to a third party.