Are communications with an attorney privileged? Here is your answer:

It depends.

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.