A privileged conversation is too important to throw away

Commentary:

Success in a litigation starts with a strong attorney-client relationship. The attorney and the client must work closely together to investigate and learn the operative facts, discern the best strategy to utilize those facts, adapt that strategy as new facts emerge and, as adversaries raise counter-arguments, and ultimately decide to settle or continue the litigation.

The foundation of a strong attorney- client relationship starts with the attorney-client privilege, which protects all communications between a client and his attorney for the purpose of giving legal advice from being revealed to anyone at any time. It is akin to the cone of silence that was used in “Get Smart” in conversations between Agent 86 and the Chief. (If that reference means nothing to you, then go on YouTube and have a laugh.)

The cloak of confidentiality provided by the privilege allows clients to have candid conversations with their attorneys. Attorneys can only map out the best course for their clients if they have all the facts, good or bad. Without the privilege, attorneys would be severely hamstrung in their ability to represent their clients.

The law grants this privilege to attorneys, doctors, clergy, psychologists and social workers, among others, but not other professionals such as accountants, financial advisors, consultants or bankers.

Nor is there any privilege between parents and children, or among siblings.

Unknowingly, many times the privilege is lost when a third party (not the attorney or the client) is present during a meeting or if a third party receives a document discussing communications between the attorney and the client.

Consider the following scenarios:

A real estate developer hires a land use consultant (an expediter) to help procure necessary approvals and permits for a project. As the project stalls, the developer, the expediter and the developer’s attorney meet to discuss the problems and challenges and to devise means to move the project forward. A memo is created by the attorney summarizing the meeting and circulated to all who attended the meeting.

An elderly client visits with his/her attorney to discuss her upcoming deposition in a lawsuit arising out of an automobile accident. A daughter of the elderly client brings her to the meeting and stays in the conference room while the client and the attorney discuss the deposition and the case.

A business owner relies on his accountant for all of his financial needs, from preparing financial statements to preparing the tax returns for the business and personally, and for general business advise on all aspects of his business. At a meeting with his attorney regarding a pending lawsuit, the accountant participates with the attorney and the business owner.

Has the attorney-client privilege been lost because of the participation of third parties in these scenarios?

Here are the answers in the scenarios above:

Privilege is lost. By including a non-attorney third party in the meeting, any privilege that existed between the attorney and the client was forfeited. The advice and service provided by a non-attorney is not protected simply because an attorney was present.

Privilege probably survives because the daughter can be seen as acting as the agent of her elderly relative to facilitate communication between the attorney and the client. The daughter’s presence put the client at ease and allowed for effective communication.

Privilege is lost unless the accountant’s participation was essential to facilitate the attorney-client communication. Where the accountant’s presence was useful but not necessary, the privilege is lost.

The lesson: When you speak, email or otherwise communicate with your attorney, make sure that no one else is present or sent a copy of the communication. The attorney-client privilege is too valuable to give away.

Among the cases that inspired this column are JBGR v Chicago Title (Supreme Court, Suffolk County); Stroh v General Motors (Appellate Division); and Narayanan v Sutherland (U.S. District Court).

This article appeared in the April 5-11, 2019 issue of Long Island Business News. ©2019 Long Island Business News.