The attorney-client privilege is fundamental to the lawyer-client relationship. The privilege facilitates legal advice and assists clients in protecting their rights and complying with the law. Board members and senior executives should understand and protect the privilege as part of their fiduciary duties.
BASIC PRIVILEGE LAW
- In virtually all jurisdictions, the privilege applies to communications between privileged people (a client and a lawyer), made in confidence, for the purpose of requesting and providing legal advice.
- Facts are not privileged. A written or oral communication between lawyer and client requesting or providing legal advice about, for example, the facts of an accident or contract dispute are protected. Neither are they discoverable or admissible in litigation. But the facts related to the accident or dispute are not.
- The privilege typically arises in legal proceedings when a party seeks to discover or introduce evidence. The client owns the privilege and must claim it to protect it.
- The privilege can be lost by waiver (e.g., disclosure to a third party).
- The related but different work-product doctrine protects documents prepared by lawyers, usually in anticipation of litigation, particularly mental impressions and opinions.
- The privilege does not apply if the communication is used to commit a crime or fraud.
HOW THE PRIVILEGE APPLIES TO COLLEGES AND UNIVERSITIES
- The privilege applies to communications between a lawyer and the board and/or senior executives such as the president, vice presidents, deans, and directors of administrative units. Beyond this senior “control group,” most jurisdictions extend the privilege to communications with any employee who has a need to know or communications with employees related to the subject matter of the legal representation. This latter formulation could apply to almost any employee if the lawyer is gathering evidence for purposes of legal advice.
- Attorneys for colleges or universities frequently undertake internal investigations into alleged wrongdoing for purposes of giving legal advice. In most of these investigations, the counsel’s interviews of employees should be privileged.
- Many communications about legal matters in complex institutions such as a college or university take place without lawyers present. Executives face legal issues on a regular basis and calling the lawyer every time a legal issue arises is cumbersome at best. However, because the privilege only applies to communications between privileged individuals, communications that do not include lawyers may not be protected. Further, if a board member or executive repeats or sends a privileged communication to another client representative, but does not include the lawyer, there is a risk that the privilege may not apply.
- Many college and university lawyers participate in communications that are not, strictly speaking, about legal matters. They may advise senior leadership on issues such as governance, government relations, finance, strategic planning, communications, and crisis management that do not fit neatly in a “legal” box. They may serve on committees and have non-legal titles such as vice president or secretary. The line between legal advice and “business” advice is often blurred at best. Just copying a lawyer does not make a communication privileged. Communications between lawyer and client are only privileged if they relate to legal advice, so application of the privilege to these hybrid or non-legal subjects requires a fact-specific analysis.
- Difficult questions about the privilege arise when board members or senior executives are implicated in possible wrongdoing or are otherwise “adverse” to the college or university. In such cases—which are every lawyer’s nightmare—clear communication and understanding are essential regarding who is and is not the client for purposes of the privilege.
Orientation for board members and senior executives should include discussion of the attorney-client privilege. Since a violation or unauthorized waiver of the privilege may constitute a breach of fiduciary duty, it is in the best interest of all parties to understand the scope and application of this privilege.