Avoid the Unforced Error: Simple Steps to Prevent Waiving the Attorney-Client Privilege

Answer: Unforced errors.  

Merriam-Webster defines an "unforced error" as "a missed shot or lost point (as in tennis) that is entirely a result of the player's own blunder and not because of the opponent's skill or effort".

In the context of the attorney-client privilege (“ACP”), a frequent blunder involves forfeiting the ACP. In many instances, those communications are of a sensitive nature and the blunder is almost entirely avoidable. This article aims to provide guidance to prevent some of the more common unforced errors.

Before unpacking the frequent errors, a brief overview of the ACP, its purpose and elements will set the stage. The ACP exists to “prevent the disclosure in judicial proceedings of the communications between the attorney and the client.” People v. Radojcic, 2012 IL App (1st) 102698, ¶ 14, 969 N.E.2d 501, 505, aff'd, 2013 IL 114197, ¶ 14, 998 N.E.2d 1212.

The purpose of the ACP is to “encourage and promote full and frank consultation between a client and legal advisor by removing the fear of compelled disclosure of information.” Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 117–18, 432 N.E.2d 250, 256 (1982). Needless to say, an attorney would be limited in what he or she can do to assist a client if the client hesitates disclosing all the necessary information to the attorney.  

To receive protection of the ACP, the party claiming the ACP must show that (1) the statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential. Pietro v. Marriott Senior Living Servs., Inc., 348 Ill. App. 3d 541, 551, 810 N.E.2d 217, 226 (2004).

It is worth noting that payment to an attorney is not necessary to establish the ACP. Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir. 1978). Similarly, execution of a contract with an attorney is not required to establish ACP. Id. This allows clients to maintain the ACP during the process of interviewing attorneys. 

It is also worth noting that the termination of the attorney-client relationship does not terminate the ACP. Rather, the attorney-client privilege survives the termination of the relationship. People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964).

With this in mind, let’s address some common unforced errors in the ACP.

ERROR #1: Sharing an attorney's communications or advice with a third person.

One of the essential elements of ACP is that the privileged communication “remains confidential.” Without this element, one must assume that the ACP does not attach. Sharing an attorney’s communication or advice with a third party is a common (and most unfortunate) unforced error. This type of error is common in business transactions. In an effort to further the negotiations of the transaction, a client simply forwards an email from her attorney to the other party to the transaction. In doing so, the client has made a significant mistake. Such a disclosure “almost invariably surrenders the privilege.” United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975).  

PREVENTING THE ERROR: Do not send or otherwise share any communication or advice with another person unless specifically instructed by your attorney.

ERROR #2: Assuming that ACP attaches to all communications to an attorney. 

Often clients believe that anything that they send to their attorney is automatically protected by the ACP. This is not the case, and failing to understand this underpins other unforced errors. Courts are wise to the strategies and tactics that less than scrupulous attorneys and clients have utilized to exploit ACP protections. Courts have said that the ACP “would never be construed to allow a client to funnel papers and documents into the hands of its lawyers for custodial purposes and thereby avoid disclosure.” Radiant Burners, Inc. v. American Gas Ass'n, 320 F.2d 314, 324 (7th Cir.1963). 

Similarly, the simple act of copying your attorney on an otherwise non-privileged communication, will not transform that communication or attachment into a privileged one. Lee v. Chicago Youth Centers, 304 F.R.D. 242, 248 (N.D. Ill. 2014), objections sustained in part and overruled in part (Aug. 6, 2014).

PREVENTING THE ERROR: Appreciate the nuances and the essential elements of the ACP. It may be wise to simply get on the phone with your attorney to discuss the matter before clicking send on an email.

ERROR #3: Communicating with an attorney in the presence of a third party.

When a client voluntarily discloses information to an attorney in the presence of third parties who are not agents of either the client or the attorney, the information is not privileged. In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790, 794, 127 Ill. Dec. 708 (1988).

There are some notable exceptions to this rule. If the other elements of the attorney-client privilege are met, the ACP extends to representatives of the lawyer, including associates, paralegals, secretaries, and investigators. People v. Knippenberg, 66 Ill.2d 276, 362 N.E.2d 681, 684, 6 Ill.Dec. 46 (1977).

PREVENTING THE ERROR: Maintain the ACP by insisting the communications with your attorney and his or her agents and coworkers are conducted without others present. This work merely scratches the surface of issues related to the ACP. Hopefully, it provides enough insight to rethink practices that lead to these unforced errors.

If you would like to learn more about this topic, please contact the author, attorney Brian Massimino, at (312) 736-1262 or at bmassimino@lavellelaw.com.