Are communications with an attorney privileged? Here is your answer:
Were you expecting a definitive “yes” or “no”? Like everything else in the law nothing is that simple. Communications typically made to an attorney by a client or concerning the attorney’s advice to a client are privileged. The first question, then, is “are you a client”?
An attorney-client relationship must exist in order for communications with an attorney to be privileged. The relationship may be created by express terms set forth in a contract or engagement letter. But it can also be formed by implication based on the expectations of the client and the conduct of the lawyer. In other words, whether there is an attorney-client relationship does not necessarily turn on a formal engagement signed by the client. The threshold issue is whether the putative client reasonably believes that a relationship existed.
The practice of law includes the representation of a client in court proceedings, providing advice to clients, and taking any action on a client’s behalf that is connected with the law. Although the payment of a fee is not an essential element, an attorney-client relationship exists when an attorney advises others as to their legal rights, a method to be pursued, the forum to be selected, and the practice to be followed for the enforcement of those rights. Thus, discussions with an attorney before a formal engagement can still be protected by the attorney-client privilege. As long as the prospective client is seeking legal advice or representation and reasonably believes the communication will be confidential, the consultation is privileged.
Once there has been a determination that an attorney-client relationship exists, an attorney may not disclose communications without express consent. Of course, as one would expect, there are always exceptions to this rule. For instance, an attorney may disclose communications when involved in a dispute with a former client or where there has been a showing of bad faith, fraud or criminal misconduct by the client. This is not meant to be a full recitation of the occasions when the privilege can be waived but merely examples. Each case and set of facts where there is an attempt to breach the privilege turns on unique circumstances.
The sanctity of discussions with an attorney in which a prospective or actual client seeks out legal advice must be preserved whenever possible. Clients and potential clients are entitled to know when they speak to an attorney about issues which can impact their life, liberty, property or well-being, that those communications are safe from being divulged.
WHY DO I NEED PERSONAL COUNSEL?
You have devoted your professional life to helping others. All the while you tried to protect yourself if the unfortunate situation arose where you found yourself being sued. You planned for this occasion by purchasing and maintaining professional liability insurance.
What happens if you have been sued or there is a threat of a lawsuit and you turn the matter over to your insurance company? In most cases, the insurance company hires a lawyer to defend you and has agreed to pay that lawyer. The retained lawyer, however, serves two masters – you and the insurance company that is paying for that lawyer. Unfortunately, there may be limitations on what that lawyer can do for you. In Ohio, the attorney who is hired by an insurance company is required to forward a “Statement of Insured Client’s Rights.” The Statement informs the insured that, among other things, the insurance company can reasonably control the defense of the lawsuit and set out guidelines governing how lawyers are to defend the case and how the lawyer is to proceed. Perhaps more important, the statement and your insurance policy both state that the insurance company is obligated to defend you only up to the limits of coverage. If the potential claim exceeds the amount of coverage that is available, you face the risk of personal exposure.
Insurance may not cover all of the claims. For example, there may not be enough insurance to cover the potential loss. Many policies reduce the amount available to settle a claim by the attorney fees and expenses that are incurred by the very lawyers hired by the insurance company. It is very possible, therefore, that the insurance you purchased will be completely exhausted by defense costs, leaving you without coverage.
Your insurance company may be unwilling to settle when it should. It may want to force a case to trial even when it is not in your best interest but, instead, serves its own purpose. There could be claims asserted that are not considered “covered” by your insurance policy which can leave you personally exposed.
Most of my 25-year career has been devoted to the representation of professionals who sometimes fall in to the crosshairs of their former clients. Every professional should consider hiring his or her own advocate experienced with how insurance companies defend their insureds and the risks associated with professional liability litigation.
You have advocated for your client, whether as a lawyer, accountant, financial advisor or physician. Do the same for yourself when you become the client. Retain an attorney who has the knowledge to understand insurance policies, the issues in your case, and can act as your advocate when you need it most.