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Beyond Privacy to Confidentiality: Academic Leaders and the Attorney-Client Privilege – Part 2

It is not only attorneys who are involved with potential or actual litigation who should be concerned with preserving the attorney-client privilege between them and their clients.

Executive employment attorneys who represent college and university presidents and heads of school in contractual matters, like our firm, must also be mindful of their ethical and practical obligations with respect to this important issue of privilege. Accordingly, we take pains to make certain that our clients understand the fundamental nature and scope of the attorney-client privilege, what it means and why it is important to safeguard it.

Developed over centuries of the common law experience, the attorney-client privilege recognizes that as a key part of our system of justice there should be unfettered confidentiality in communications between an attorney and his or her clients.

Having a legal privilege which shields from disclosure what is said or written by a client to their attorney, and by the attorney to the client, is designed to foster a relationship of trust and candor between attorneys and their clients.

Such openness of communications without fear of disclosure to a third party supports the professional relationship and allows us to provide – and the client to receive – our best candid professional judgment, which is the reason we were hired in the first instance.

Here is an example which actually could happen in our practice:

A dean or provost at college X is offered a job as the president of college Y. This will be our client’s first presidency, his or her employment in the top executive job available at college Y.

Accordingly, we receive a draft presidential contract from counsel for college Y. In our review, it turns out that this first draft is not a strong presidential contract. It may even be totally inadequate. At this point, we have to be able to point out to our client in confidence the deficits in the contract as well as the potential pitfalls of accepting the proffered employment under the terms of the contract. Additionally, our client needs to be able to respond to us in confidence – and thereby with confidence – in order to tell us what he or she is concerned about (or not concerned about) and give us instructions.

If these communications are not assured of being kept “privileged and confidential,” it can affect our client’s relationship, as well as his or her actual legal rights, with the prospective new employer and/or the current employer.

An important point to note is that the privilege of confidentiality in the attorney-client relationship is a privilege which belongs to the client. The lawyer is ethically constrained from disclosing client communications except in certain very limited circumstances (e.g., a client cannot tell us that they are about to murder someone and expect that we will hold that in confidence). Said another way, the privilege does not belong to the lawyer.

But – and this is an important “but” – the client can waive and thereby lose the privilege by themselves revealing part or all of the confidential communications to a third party who is deemed to be outside the privilege. Such a revelation by the client of confidential attorney-client communications is said to “break” the privilege and may allow third parties to inquire into the specific communication and other communications between the attorney and the client which otherwise would be confidential.

This “waiver of privilege” by the client can be intentional (the client knows that his or her behavior will work a waiver of the attorney-client privilege), but it can also be triggered by the client’s unintentional acts.

To return to the grotesque incident which opened Part 1 of this topic, if the university president who was fired for sending hundreds of messages over his office email to the subordinate employee who also was his girlfriend, had, instead, been communicating with his attorney, he would have waived, and thereby forfeited his right to have the confidentiality of those communications protected by the attorney-client privilege.

The key is that he sent these communications over a medium where he had no legal expectation of privacy let alone confidentiality (if you do not believe me, just read any employer’s handbook or office manual in the section governing communications through a work server or under a work email address).

Sometimes such forfeiture of the attorney-client privilege, and the confidentiality of communications it protects, merely leads to embarrassment, but sometimes it has dramatic adverse consequences for the client’s employment and employment entitlements. So as to be safe rather than sorry, executive employment clients must be introduced by their attorneys to an understanding of the attorney-client privilege, in order that clients can take the relatively few simple steps necessary to preserve that privilege for their own benefit.

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.