At the outset of every legal engagement, our executive employment clients receive a short but important lecture from us on the nature and ramifications of the attorney-client privilege as it applies to their interactions with us as their executive employment attorneys.
Volumes have been written about this aspect of the lawyer-client relationship, but the basic concept of the attorney-client privilege can be explained quite simply. What college and university presidents, as well as all business executives, really need to know is the following:
1. The attorney-client privilege developed over a lengthy period of time in Anglo-American law. It is designed to keep professional communications between a client and his or her lawyer confidential. The underlying rationale for this legal privilege is the belief that there is significant value in having much if not all of what a client tells their lawyer about the client’s situation, as well as the thoughts and advice that the lawyer offers the client in return, protected from disclosure to third parties. This allows clients to feel confident that they can share their thoughts, fears and even secrets with their attorneys without the risk of disclosure or publicity. And, in return, that the lawyer can “think out loud” to the client as to possible courses of action, many of which never get beyond the stage of discussion or speculation, without concern that those thoughts, even if spoken out loud, will come back to bind or disadvantage the client. The aim is to promote a free interchange of ideas between client and attorney without worrying that some other party, either actually adverse to the client’s interests or interested for the sake of publicity, personal leverage or embarrassment, will broadcast those communications to anyone else.
2. The privilege covers all communications between the executive and his or her employment counsel with a few common sense exceptions (e.g., you can’t tell me that you are about to kill someone and rely on my being obligated to keep it a secret; also, you can’t take a piece of otherwise publicly ascertainable information and make it secure from disclosure simply by relating it to your executive employment lawyer, since the privilege covers communications between the lawyer and client, not external facts which could be learned in some way not involving those communications).
3. The privilege belongs to the client, not the attorney.
As executive employment attorneys, we are ethically bound to keep communications with our clients confidential. No matter how interesting they are, the attorney cannot share them with anyone other than other lawyers and staff in their own office, who are similarly bound to hold such communications in confidence. The lawyer is only free to share them with a third party after having received the explicit consent of the client before doing so.
4. BUT — and this is important — the client, who “owns” the privilege, can inadvertently lose the privilege themselves if they are careless with the communications. If, for instance, a client goes to a cocktail party and tells a friend, “Wait until you hear the advice I received from my executive employment attorney,” the client will lose the privilege of keeping that communication private and confidential (and maybe even lose the privilege over his other communications with the lawyer as well).
This is why, at the beginning of our relationship with our clients, we urge them not to talk to ANYONE other than their spouse or legal domestic partner about their legal situation, what they tell us and what we tell them (see our recent blog entitled, “Silence Is Golden”). In a perfect world, the client would not even reveal their attorney-client discussions to their spouse, but that is simply unrealistic because everyone discusses their most sensitive employment issues with the person who most closely shares the burden and benefits of that employment.
5. A client can also lose or waive the attorney-client privilege by using a means of communication with the lawyer as to which the client has no legitimate expectation of privacy or confidentiality, such as by writing to us through a work email address. For this reason, at the beginning of each legal engagement, we make certain that our clients only communicate with us by a private email address such as Gmail or Yahoo.
And here is one additional important tip for college and university presidents: please don’t forget that the general counsel of your institution, as well as its outside lawyers, represent the institution, not you personally. For this reason, you should not give personal information to the general counsel of your college or university, whose duty of confidentiality extends only to that college or university rather than to you personally, without getting specific clearance from your own executive employment attorney that you are free to discuss a given piece of personal information with the school’s general counsel.