Attorney-client privilege is the name given to the concept of legal professional privilege, whereby an attorney has the obligation not to disclose and to prevent other persons from disclosing confidential information shared with them by a client. Dating back to the sixteenth century, the attorney-client privilege is the oldest of the privileges in an attorney-client relationship.
The United States Supreme Court has previously ruled that such protections are essential, enabling clients to make “full and frank” disclosures to their attorneys, who, in turn, are better able to advise and represent clients.
There are exceptions to this privilege, namely when (1) the disclosure to the attorney was made for the purpose of committing a crime or a tort, (2) the communication was held in presence of another person or persons not bound by attorney-client privilege, or (3) when the client expressly waives privilege.
If a lawyer is acting for a client in another capacity than as a legal representative, such as, for example, as a business advisor, he may then not be bound by legal privilege.
But what would happen in the event that attorney-client privilege is breached without the attorney or the client’s consent? What would happen in the event of a hack? What would happen if a government agency were to access an attorney’s mailbox without putting in place adequate attorney-client privilege safeguards?
Unfortunately, those are all possible scenarios. They happen. They happened recently in the United States, where Federal Agents raided the home of attorney Rudy Giuliani, and confiscated electronic devices containing privileged communications. In fact, more than one attorney was recently subject to such searches.
The recent searches on Giuliani and others’ private residences as well as the confiscation of their electronics will undoubtedly be challenged. The Court, in this case, the Southern District Court of New York, will be once again looking at the topic of attorney-client privilege.
It is highly likely that the search process conducted by the Federal Bureau of Investigation will be scrutinized in order to determine whether attorney-client privilege has been respected.
As precedent has shown, the government has upheld the 6th Amendment right, which includes the right to a lawyer and by extension, the right to attorney-client confidentiality. In order to ensure that those rights are protected, courts have ordered the appointment of a ‘special master’.
A special master is usually an official appointed by a judge. Their role is to investigate and reflect back to the judge, advising on their position based on the evidence seen and heard. They are independent from search parties, such as federal agents.
If government agencies are conducting searches of attorney material, where the breach of attorney-client privilege is highly likely, strict processes and procedures must be followed. Precedent has shown that courts take the safeguarding of attorney-client privilege very seriously.
In the 2015 GE case, for example, the Court upheld that privilege is not forfeited due to the fact that the communicated information may be public in nature. This demonstrates that the privilege pertains to the communication itself, not the content of the communication.
In any case, information deemed as privileged cannot be used as evidence in a court of law.
The scope of privilege is therefore wide. It will be seen, now, whether the practice and privilege has been respected by government agencies in these most recent cases.
