Types of Legal Privileges

December 03, 2022

Types of Legal Privileges


An express contract is not required for the establishment of a solicitor-client relationship; The relationship may be implicit from the behaviour of the parties. However, the relationship cannot exist unilaterally in the mind of the potential client, unless there is a “reasonable presumption” that the relationship exists between lawyer and client. The implied relationship can be evidenced by several factors, including, but not limited to, the circumstances of the conversation, the payment of fees to an attorney, the degree of sophistication of the potential client, the request for and receipt of legal advice, and the history of legal representation between the alleged client and the practitioner. While this list of factors is illustrative, none of these factors, taken in isolation, will confirm the existence of a solicitor-client relationship.12 A final consideration arises with respect to in-house counsel. Communication on corporate matters between a corporation`s in-house counsel and the corporation`s external counsel is normally subject to privilege.16 However, if the communication is between a representative of the corporation and in-house counsel, the distinction is less clear. Because in-house counsel often wear multiple hats, courts find it difficult to apply privilege.17 The privilege would extend to all legal advice, but does not protect purely commercial communications.18 Problems arise when communications include both legal and business advice, and courts take different approaches to deciding that: whether or not the privilege should be applied. At the very least, it appears that the court will first try to determine what role the in-house lawyer plays within the company – that of a lawyer or that of a business manager. From there, many courts will review the content of the communication, and this review will lead to different results.19 Therefore, in-house counsel should be careful to separate their legal advice from their business opinions. Some courts also use the “tactile basis” analysis to determine whether a communication that has taken place in a foreign country is protected by privilege. For the purposes of this test, privilege protects communications if they come into contact with the United States because they had more than one accidental connection to the United States. In Gucci Am., Inc.

v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 2010), the court held that communications with Italian lawyers maintained on an Italian server affected the United States because they were related to a company`s legal strategy of bringing trademark infringement suits in Italy and the United States. As a result, it applied U.S. law to determine whether communications were protected. While the client is generally the holder of solicitor-client privilege, an exception is that in some jurisdictions, communications intended solely for internal review by a law firm representing the client are privileged and do not need to be disclosed to the client – even if the client is presumed to have access to the lawyer`s file. For example, in the securities litigation In re Refco Securities Litigation, in which investors sued a law firm for bankruptcy law error and complicity in breach of fiduciary duty, a federal court ruled under New York law that the law firm`s internal email about the client could not be found unless a clear need was demonstrated. It is in the client`s interest to allow a law firm to retain such internal communications so that lawyers can record their thoughts privately to ensure effective representation. Communications involving representatives (of the lawyer or the client) may also be protected by solicitor-client privilege. Communication between a lawyer`s representative (e.g., an accountant) and the client may be preferred if the purpose of the communication is to facilitate the lawyer`s legal advice.4 A lawyer`s communication with a representative of the client (who does not act solely as an intermediary or intermediary of the communication between the lawyer and the client) may be preferred if the agent is authorized to work for the organization on the subject matter of the communication (i.e. if agent has the is equivalent to the customer).

Solicitor-client privilege dates back to the 1500s and was the first legal privilege recognized in English common law. For privilege to be invoked, the client`s statements must have been made to the lawyer in order to obtain legal advice. The declarations must also have been made during a customer relationship. The “control group” was defined by the courts to include employees who were in a position of control, allowing them to play a critical role in determining what actions the company would take after receiving legal advice. See, for example, City of Philadelphia v Westinghouse Elec. Corp., 210 F. Supp. 483, 485-86 (A.D. Pa.

1962). ↩ A well-known privilege is solicitor-client privilege, known as solicitor-client privilege in the United States and solicitor-client privilege in Australia. This protects confidential communication between a client and their legal counsel for the predominant purpose of legal counsel. [1] The rationale is that clients should be able to communicate freely with their lawyers in order to facilitate the proper functioning of the judicial system. Unfortunately, it is not always so clear when an attorney-client relationship exists. Let`s say Sally Smith contacts David Jones, a lawyer, by phone. During the conversation, Smith Jones explained that it was involved in a dispute with the Internal Revenue Service over a tax-saving agreement designed for specific business purposes. She reveals important facts and very sensitive information during the conversation, then asks Jones for his legal opinion. Is the content of this conversation privileged? That depends. How do parties to an arbitration know if they have a valid privilege under U.S.

law? There is no uniform privilege law in the United States, as federal and state laws may apply. There are two main types of privilege protection under U.S. law that can protect a record from disclosure. These are solicitor-client privilege and the protection of the work product. All U.S. jurisdictions recognize the legal privilege of confessions or confidential communications to a member of the clergy. As long as the statements of the author of the communication are to be private and made for the purpose of spiritual direction, they are protected. The privilege belongs not only to the communicant, but can also be claimed by the member of the clergy. Even statements made in a group discussion can be protected if they were made by a cleric and the statements were used to receive spiritual guidance.

The subject matter of the communication was central to the purpose test. In the context of that test, the courts had to determine, first, whether the purpose of the communication at issue was to obtain and provide legal advice to the company, (b) whether the employee`s supervisor had insisted that the communication be made by the employee, and (c) whether the subject matter of the communication to the lawyer fell within the competence of the employee concerned. Thus, if the subject matter of the communication to the lawyer concerned the employee`s duties to the company, solicitor-client privilege would cover that communication, regardless of the social rank of the employee who made the communication. See Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff`d by an equal divided court, 400 U.S. 348 (1971). ↩ The product of opinion work is work that encompasses the mental impressions, conclusions, opinions or legal theories of the lawyer and is considered almost sacrosanct and offers strong protection against disclosure. Emails and other information provided by in-house lawyers to company employees (and vice versa) on business matters (as opposed to legal matters) are generally not protected by solicitor-client privilege.

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