Understanding Attorney-Client Privilege: What Clients Need to Know

Attorney-client privilege is one of the most important protections in the legal system. Its powerful legal protection allows clients to speak freely and candidly with their attorneys without fear that their communications will later be exposed. Despite its importance, this privilege is often misunderstood, and missteps can unintentionally put clients at risk. These misunderstandings can lead to costly mistakes, including the unintentional waiver of privilege or even legal exposure.

Below is a breakdown of what attorney-client privilege does and does not cover, along with some of the most common pitfalls clients should avoid.

When Attorney-Client Privilege Applies

Attorney-client privilege protects confidential communications between a client and their lawyer (including their legal team) made for the purpose of seeking or giving legal advice. This applies to both individuals and businesses, and includes not only in-person conversations, but also phone calls, emails, texts, and other forms of communication—as long as the intent is to keep them private. 

Key components include:

• The communication must be between the client and a licensed attorney (or their representative or legal team).
• The primary purpose of the communication must be legal advice, (not business, public relations, or personal advice).
• The communication must be made in confidence, with a reasonable expectation that it will remain confidential.

When Attorney-Client Privilege Does Not Apply

Many clients assume that if a lawyer is involved in a conversation or copied on an email, the communication is automatically protected. That’s not always the case. Below are common exceptions and limitations:

1. Presence of Third Parties: If someone outside the attorney-client relationship (such as a friend, business associate, or family member not directly involved in the legal matter) is present or copied on the communication, privilege may be waived.
2. Non-Legal Advice: If the attorney is acting in a business, personal, or public relationship capacity rather than a legal one, the communication is likely not protected.
3. Future Crimes or Fraud: Communications intended to plan or cover up a crime or fraud are not protected, even if made to an attorney.
4. Disclosure: Voluntarily sharing privileged communications with others, especially via email, group messages, or social media, can waive the privilege entirely.

Common Misunderstandings

Clients often overestimate the reach of attorney-client privilege. Here are a few widespread misconceptions.

• “Everything I tell my lawyer is privileged.”
  Not necessarily. Only communications related to legal advice are protected. Casual conversations, logistical updates, or personal discussions may not be.
• “If I copy my lawyer on an email, it’s privileged.”
  Merely including your attorney on a message isn’t enough. If the email isn’t about legal advice or includes unrelated recipients, privilege likely doesn’t apply.
• “I can forward legal advice to others and keep it confidential.”
  Sharing legal advice with people outside the attorney-client relationship—like a business partner or family member—can waive the privilege.
• “I can share privileged documents with others and still keep the privilege.”
  Privilege is fragile. Sharing legal communications with anyone outside the attorney-client relationship—especially non-lawyers—can waive the privilege.

How Clients Can Accidentally Waive Privilege

Below are some of the most common ways clients inadvertently put their legal confidentiality at risk:

1. Using work email or a shared device to communicate with their attorney.
2. Forwarding attorney emails to colleagues, friends, or advisors who are not part of the legal team.
3. Discussing legal advice in group meetings or online forums, including social media.
4. Blending legal and business conversations in a single email or meeting, especially in corporate settings.

Conclusion

Attorney-client privilege is a powerful tool—but it’s not absolute, and it’s not automatic. The best way to ensure privilege is respected is to keep legal communications confidential, limit who is included in communications, and stay focused on legal advice.

When in doubt, ask your attorney before forwarding, copying, or sharing anything legal-related with others. It’s far better to clarify in advance than to risk losing protection after the fact.