George Bernard Shaw once remarked that the “single biggest problem in communication is the illusion that it has taken place.” And so it is with the attorney–client privilege. Of the corporate attorney–client privilege’s primary elements, most focus on confidentiality and distinguishing between business and legal advice. Corporate counsel should not forget, however, that the privilege protects only communications. And unfortunately, some lawyers lose privilege arguments because of an illusion that a communication has taken place.
The Merriam-Webster dictionary defines “communicate” as “to convey knowledge or information.” It similarly defines “communication” as “a process by which information is exchanged between individuals.” The difference, of course, is that a communication is not information, but the conveyance of information.
The Model Rules of Professional Responsibility recognize a comparable distinction. Rule 1.6 obligates lawyers to keep their clients’ information confidential. The Rule’s comments identify the attorney–client privilege as a “related body of law” and clarify that the confidentiality obligation applies “not only to matters communicated in confidence but also to all information relating to the representation.” Despite the definition and ethical-rule distinctions, many lawyers conflate the two and assume that the privilege protects all client-related information. Not so.
In my Summer 2020 Privilege Place column in Today’s General Counsel, I explore the concept of communications within the attorney-client privilege rubric. It’s a topic worthy of extra thought, so I hope you enjoy the discussion.