Attorney Client Privilege With Consultants In San Jose
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Four Practical Tips for Protecting the Attorney-Client Privilege,... CLEARLY IDENTIFY PRIVILEGED COMMUNICATIONS. PRIVILEGE RULES OUTSIDE THE US ARE DIFFERENT. USE CAUTION WHEN COMMUNICATING WITH OUTSIDE DIRECTORS. IN-HOUSE COUNSEL SHOULD CAREFULLY CONSIDER THE RISKS OF SIGNING AFFIDAVITS OR SWORN STATEMENTS.
The email needs to be seeking and getting legal advice. Make legal aspects clear and be honest with self. If an email really just concerns an operational business matter - especially low risk matters - don't dress it up as privileged legal communiqué.
To be privileged, the communication must "be made for the purpose of the attorney's professional representation, and not for some unrelated purpose." (Id.
By forwarding an email to a third-party (anyone other than your lawyers and staff with a “need to know”), which contains the University attorney's advice on a matter, the privilege is waived.
Even if you copy your lawyer on an email to the company financial professional, that does not necessarily mean that the communication is privileged. Forwarding emails from your attorney directly to the financial professional is also a bad idea because it will likely break the privilege.
An exception is to further a crime or fraud. Suppose your conversation with an attorney includes a plan to commit a crime or fraud. In that case, the attorney-client privilege doesn't apply. Also, there is imminent death or harm.
The issue of waiver arises most commonly when a communication is witnessed by a third party or where the client does not intend the communication to be confidential. The mere presence of a third party will likely prevent the creation of the attorney-client privilege.
