Attorney Client Privilege Legal Advice

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The majority opinion in Mead Data dismissed Justice McGowan`s disagreement on the sole ground that he «structures his concern about solicitor-client privilege in reasonable generalities, which unfortunately do not take into account the fundamental fact that this case is occurring under the Access to Information Act.» Id. at 255 n.28. This restrictive view of the scope of solicitor-client privilege was pursued within the DC circuit in two subsequent FOIA cases. See Schlefer v. United States, 702 F.2d 233, 245 (D.C. Cir. 1983), Brinton v. Department of State, 636 F.2d, p. 604. However, subsequent Supreme Court decisions force the conclusion that the analysis used in this line of the case is no longer valid, if at all, either as an analytical approach to the privileges contained in EXCEPTION 5 of the FOIA, or as a matter of substantive law, which interprets solicitor-client privilege. A memorandum from one director to another on a legal matter is generally not preferred.

For the privilege to exist, communication must be made to, by or with a lawyer. In addition, the communication must be used to seek or receive legal advice. The following example illustrates this point. The privilege only extends to communications that the customer wishes to treat confidentially. Communications made in non-private environments or in the presence of third parties that are not necessary to achieve the purpose for which the lawyer was consulted are not confidential and are not protected by privilege. Assuming the lawyer-client relationship is well established, is all communication protected? It also depends. Basic solicitor-client privilege protects the client`s communication with the lawyer. It also extends to reactive communication from the lawyer to the client. However, communication does not need to be as open as an oral or written act. On the contrary, the slightest action or inaction, such as a nod of approval or complete silence, can be a message. 20 In addition to these more traditional political exceptions to the application of privilege, recent events remind us that privilege is by no means absolute.

In the wake of the events of the 11th. In September 2001, for example, Congress quickly passed the USA Patriot Act, which, among other things, allowed greater authority to conduct searches and monitor activities without judicial intervention.28 The USA Patriot Act led to a number of new rules and executive orders from the Bush administration, including the widely criticized rule of the Bureau of Prisons.29 This rule «empowers the Attorney General to: instruct the [Bureau of Prisons]. Director responsible for monitoring or reviewing communications between detainees and lawyers in order to deter future action that could result in death or serious bodily harm to persons or property. 30 All that is necessary before such a check can begin is «reasonable suspicion. that a particular detainee may use communication between the lawyer and the client to facilitate acts of terrorism. 31 Although the long-term effects of this new rule may not be known, it is recalled that privilege itself is not immune to the political climate in which we live. As a threshold issue, the Supreme Court recently pointed out in Weber Aircraft, 104 p. Ct. at 1492-94, and Grolier, 462 U.S. at 26-28, that the scope of a privilege contained in FIA Exception 5 is consistent with the scope of that privilege in the context of civil discovery.

Therefore, contrary to the position of the majority of Mead Data, the «fact that a case arises under the Freedom of Information Act»566 F.2d to 255 n.28, is simply not relevant to determining the material contours of a civil discovery privilege. A federal judge stated that «[t]he privilege applies only when (1) the claimed holder of the privilege becomes or wishes to become a client; (2) the person to whom the notice was addressed, (a) is a member of the Bar Association of a court or its subordinate, and (b) acts as counsel in connection with this notice; (3) The communication refers to a fact of which the lawyer has been informed, a) of his client (b) without the presence of foreigners, (c) mainly to obtain either (i) an opinion on the law or (ii) legal services or (iii) assistance in legal proceedings, and not (d) for the purpose of committing a criminal offence or misdemeanour; and (4) the privilege (a) claimed by Customer and (b) has not been revoked. 9 Communications must be treated confidentially for the privilege to apply. If the content of the attorney-client communication is disclosed to persons outside the university – or to persons within the university who are not directly involved in the case – the privilege may expire. Sometimes a lawyer is asked to participate in activities that do not necessarily require specific legal advice or representation. In this context, solicitor-client privilege may not apply. A meeting with a lawyer present is not protected simply because there is a lawyer in the room. If a lawyer is given another role (e.g., investigator or member of a research committee) and is not acting as a lawyer, the privilege cannot apply. Despite all its political considerations and justifications, solicitor-client privilege has a very real practical consequence: the lawyer cannot be forced or voluntarily disclose questions submitted to him confidentially by the client in order to obtain legal advice. Similarly, the client cannot be compelled to testify about matters that have been disclosed to the lawyer for the purpose of obtaining a lawyer.7 So what is the privilege and when does it apply? But what is the result when an employee like Smith seeks advice on an individual basis, as opposed to that of a contractor? Courts will grant solicitor-client privilege to senior managers of companies, including as individuals, provided that there is clear evidence that the agent has communicated with the agent`s individual lawyer with respect to personal matters such as possible individual liability. Not surprisingly, the presentation required by the company employee in this regard is stricter.

Even if the required complaint is provided, some information may cause a conflict of interest for the in-house lawyer. In this case, the Company`s agent must terminate the interview and advise the Company`s employee to seek separate legal counsel.15 While there is no single authority over solicitor-client privilege, it has been defined as follows: «(1) Where legal advice of any kind (2) is sought by professional legal counsel in his or her capacity, (3) communications relating to this purpose, 4° which are made confidential by the client (5) (6) are permanently protected at his hearing (7) against disclosure by [the client] or by the lawyer, (8) with the exception of the protection which is waived. »; 8 Many managers continue their careers without a thorough understanding of employment advocacy strategies. While you may hope you never need it, the smartest thing you can do is familiarize yourself with some elements of «Business Legal 101» to protect yourself and your business from unwanted legal exposure. One of those areas that is really important to understand – but is rarely taught in business schools or in-house training workshops – is solicitor-client privilege. Granted, you may not need to use it very often, but it`s definitely worth expanding your vocabulary and leadership toolkit.