Attorney-client privilege is among the most important features of the relationship between lawyers and clients. It allows free and open communication about legal matters. The U.S. Supreme Court recognized the importance of this privilege in a 1981 decision, Upjohn Co. v. United States, finding that “sound legal advice or advocacy serves public ends and that…[this] depends upon the lawyer’s being fully informed by the client.” Both lawyers and clients must be careful to maintain confidentiality and avoid anything that might resemble a waiver of privilege. During the discovery process, attorney-client privilege review prevents the accidental release of confidential communications to an opposing party.
What Is Attorney-Client Privilege?
The attorney-client privilege protects communications between lawyers and their clients that relate to ongoing legal matters and general legal advice. It is a defense for the client to a demand for their communications, such as in discovery requests or during a deposition.
The privilege only applies to communications that the parties intend to be confidential. They must make reasonable efforts to keep privileged communications private. A conversation held in public, for example, might not be privileged if others can easily overhear it. Emails and letters kept behind passwords or locked doors are privileged, provided they are directly related to an attorney’s legal representation.
When Is Privilege Review Necessary?
Privilege review is necessary to avoid inadvertent disclosure of privileged communications during the discovery process. Responding to discovery often involves massive amounts of material. The burden falls on the party producing discovery responses, and their attorneys, to review everything for relevance and privilege. Attorneys with knowledge of the legal matter at hand must review every item included in the discovery response to determine whether the attorney-client privilege applies to any of it.
What Happens If I Accidentally Give Privileged Material to an Opposing Party?
Accidental disclosure of privileged material does not automatically mean that a party has waived attorney-client privilege. Rule 502(b) of the Federal Rules of Evidence makes an exception for “inadvertent disclosure.” Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure allows recovery of privileged materials from an opposing party after an inadvertent disclosure. Anything the opposing party learns from seeing the privileged materials in the meantime, however, could affect their claims or defenses in the case.
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Baer Reed helps law firms and in-house counsel handle attorney-client privilege review and other aspects of the litigation process. Contact us today to learn more.
Mr. Reyes graduated with honors from the Ateneo de Manila University, where he received the Procter and Gamble Student Excellence Award. He obtained his Juris Doctor degree from the Ateneo de Manila School of Law. During law school, Mr. Reyes was part of the Philippine delegation to the Willem C. Vis International Commercial Arbitration Moot held in Vienna, Austria. He was also a member of the Ateneo Society of International Law and the St. Thomas More Debate Society. He completed his internship at the Public Attorney’s Office. He wrote a thesis entitled: “To Kill A White Elephant: An Analysis of the Fiduciary Exception to the Corporate Attorney-Client Privilege”. Mr. Reyes is admitted to practice law in the Philippines and the State of New York.
Ms. Lardizabal-Manzano is a graduate of San Sebastian College-Recoletos, where she earned her B.A. in Political Science. In 2003, she received her law degree from Lyceum of the Philippines and was admitted to practice law in 2004.
Matthew Hersh earned a B.A. in Political Science from Columbia University in 1990 and graduated cum laude from Georgetown University Law Center in 1999. He also holds a master’s degree in international relations from the Georgetown University School of Foreign Service.
Cap. Avi Levak (Res. IDF) graduated from from Israel’s prestigious Ben-Gurion University of the Negev with a Bachelor of Science in Computer Science and Mathematics. He is also a Leadership and Communication coach trained in TuT coaching by Alon gal in Israel. Avi specializes in high-level, in-depth analysis of business and client needs, within systems and software strategy and architecture.
Ms. Tyler graduated cum laude from Georgetown University and received her law degree, cum laude, from Georgetown University Law Center. During law school, she interned at the United Nations Economic Commission for Europe. She also worked on The Tax Lawyer journal and was a member of the award-winning Barristers’ Council Mock Trial Team. Ms. Tyler is admitted to practice law in the State of California and the District of Columbia.
Ms. Cruz-Anonuevo graduated cum laude and top nine in her batch from Miriam College with a degree of Bachelor of Arts in InternationalStudies. She obtained her Juris Doctor degree from Ateneo de Manila University School of Law in Rockwell. During law school, she interned in Rivera, Santos, Maranan & Associates. She was also part of Ateneo’s Labor Law Bar Operations. She wrote her thesis on, “Stealing Privacy: Limitations on Media’s Photographic Invasion.,” Ms. Cruz-Anonuevo is admitted to practice law in the Philippines.
Ms. Aquino-Batallones obtained a Bachelor of Arts degree in Development Studies (with Minors in Global Politics and Hispanic Studies) from the Ateneo de Manila University. In 2011, she received her Juris Doctor degree from Ateneo de Manila University School of Law. During law school, she interned at Romulo Mabanta Buenaventura Sayoc & de los Angeles then became an intern of Ateneo Legal Services Center’s Clinical Legal Education Program.
Mr. De Guzman graduated from San Beda College with a degree of Bachelor of Arts Major in Economics and received his law degree from San Beda College of Law. He is multilingual and is fluent in three languages: Chinese, Filipino, and English. He was admitted to the Philippine Bar in 2003.