Attorney-client privilege means that in litigation, anything you tell your attorney will be held in strict confidence and cannot be disclosed unless there is a waiver.
How the Attorney-Client Privilege Works
Under N.J.S.A. 2A:84A-20, [f]or a communication to be privileged, it must initially be communicated by an individual in his capacity as a client in conjunction with seeking or receiving legal advice from the attorney in his capacity as an attorney, with the expectation that the content of the communication remain confidential.” This privilege protects the communications exchanged by the client and attorney during legal representation.
By protecting client communications, the privilege encourages clients to be open and honest with their attorneys. Once the attorney-client privilege is established, you as the client may refuse to disclose privileged communication, and prevent your lawyer from disclosing it.
Understand that a communication knowingly made within the presence of a third party may nullify the privilege. But, third parties who are assisting an attorney in providing legal advice to a client does not destroy the attorney-client privilege.
The attorney-client privilege can also exist between an attorney and a corporate client’s employees. Communications made by mid or low-level employees within the scope of their employment to the corporation’s attorney for the purposes of aiding counsel in providing legal advice are protected by the attorney-client privilege.
Avoiding Waiver of Attorney-Client Privilege
A client can waive the attorney-client privilege by giving consent to his or her lawyer to disclose information otherwise protected by the privilege. But remember, if a privileged communication is shared with third parties, the privilege may be deemed waived, in which case those persons can be required to testify regarding the conversation.
Technology has increased the risk of waiving attorney-client privilege. Remote working has also made it more challenging to preserve attorney-client privilege.
For instance, employees must make sure that third parties who are outside of the protected attorney-client privilege such as family members and roommates, are not present when discussing sensitive topics. If they are, it can prevent those communications from being protected under attorney-client privilege.
If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Litigation Attorney