Understanding Privilege Law: Navigating Complex Legal Privileges

Privilege is a special legal right, immunity, or exemption granted to a person. In common law jurisdictions and some civil law jurisdictions, legal professional privilege protects all communications between a professional legal adviser and their clients from being disclosed without the permission of the client. The privilege is that of the client and not the lawyer.

The purpose of this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future.

The attorney-client privilege is the oldest privilege recognised by Anglo-American jurisprudence. It protects from compelled disclosure an oral communication or a document in any form.

In addition, courts in the United States recognise a work product doctrine, often called a work product privilege, which protects from disclosure those documents, in any form, that were prepared by the attorney or by an agent of the attorney, in anticipation of litigation.

Attorney-client privilege

The attorney-client privilege preserves the confidentiality of communications between lawyers and their clients. The privilege protects individuals and institutions. The privilege belongs to the client, meaning they have the authority to waive or invoke it. The client may not be compelled to testify regarding matters communicated to the lawyer for the purpose of seeking legal counsel. The basic attorney-client privilege protects client communications with the attorney and extends to responsive communications from the lawyer to the client. This includes all forms of communication, such as verbal discussions, written correspondence, emails, and text messages.

The attorney-client privilege is not absolute and has certain exceptions. For example, if a client seeks legal advice to further a criminal act or fraud, the privilege does not apply. Additionally, if a third party is present during the privileged communication, the confidentiality may be compromised unless the third party is essential to the attorney-client relationship, such as an interpreter. The privilege may also be waived if the confidential communications are disclosed to third parties.

In the United States, attorney-client privilege is not treated uniformly across all state courts. While some states, like California, protect the attorney's confidential communications regardless of whether they contain or reveal the client's communications, others, like Washington, protect only client communications.

Common interest privilege

The common interest privilege is intended to prevent joint parties and their attorneys from disclosing confidential information learned through a joint defence. In other words, it allows a client to disclose information to their attorney in the presence of joint parties and their counsel without waiving the attorney-client privilege.

To claim privilege under the common interest rule, it must be shown that the communication in question was given in confidence and that the client reasonably understood it to be so given. The Third Circuit has explained that the common interest privilege should not be used "as a post hoc justification for a client's impermissible disclosures".

In the US, the party asserting the privilege generally must show that:

• The communications were made in furtherance of a joint defence effort;
• The statements were designed to further that effort; and,
• The privilege was not waived.

In the context of litigation funding, the common interest privilege may extend attorney-client privilege to cover communications between parties and non-parties under certain circumstances. To qualify as a "proper community of interest", the interests between the parties must be identical (and not just similar) and legal (not merely commercial in nature).

In the civil context, the common interest privilege protects both communications between co-defendants and their counsel in actual litigation, as well as potential co-defendants and their counsel.

Without prejudice privilege

The "without prejudice" principle is a legal concept that encourages the settlement of disputes outside of court. It applies to both written and verbal communication between parties to a dispute who are making a genuine attempt to resolve it. The rule allows parties to make concessions and promises without fear that their words will be used against them in court should negotiations fail.

The protection applies when three elements are present: a dispute, a genuine attempt to resolve the dispute, and the making of assertions in that attempt. If these elements are met, the privilege applies to both parties, and consent from both parties is required to waive it. However, "without prejudice" does not necessarily extend to every word spoken during negotiations, and words or conduct constituting criminal conduct cannot be kept from a jury.

In common law jurisdictions, the "without prejudice" principle is recognised as a legal concept, sometimes referred to as "settlement privilege" or "mediation privilege" if a third party conducts the settlement negotiations. In English law, any written or oral communication prepared for the purpose of a genuine attempt to compromise a dispute is subject to "without prejudice" privilege. If these negotiations do not result in an agreement, the rule prevents either party from referring to the content of those negotiations in their evidence.

The label "without prejudice" is considered prima facie evidence that the respective documents and/or statements are privileged, as it indicates that they were created in the context of settlement negotiations and not intended as evidence. However, settlement negotiations do not automatically confer privilege. Any statements made by the parties are only privileged if they are made to further the settlement negotiations. The privilege applies only to statements and documents closely linked to a settlement offer but not to any independent statements of facts.

The "without prejudice" principle is also subject to various exceptions, including:

• Waiver of privilege by one or both parties.
• The application of the principle violating public policy.
• Disputes between the parties regarding the interpretation or validity of the settlement agreement.
• The need to prove fraud, undue influence, misrepresentation, perjury, blackmail, or other clear impropriety.
• The existence of a concluded settlement agreement between the parties.

Attorney work product privilege

The attorney work-product privilege, also known as the work-product doctrine, rule, immunity, exception, or privilege, is a legal concept that protects materials prepared by attorneys and other persons in anticipation of litigation or trial from discovery by opposing counsel. It is important to note that this privilege only applies to the discovery process in American civil procedure and is not applicable in other countries.

The work-product privilege is broader in scope than the attorney-client privilege as it covers materials prepared not just by the attorney but also by other individuals, as long as they are created to prepare for litigation. This includes interrogatories, signed statements, and other information gathered for the prosecution or defence of a case. However, despite its broader scope, the work-product privilege is considered less powerful than the attorney-client privilege and can be overridden if the opposing party demonstrates necessity, such as in the case of an unavailable witness.

In federal court, Rule 26(b)(3) outlines a sequential step approach to addressing attorney-work product privilege issues. Firstly, the party seeking discovery must prove the relevance of the materials to the pending litigation and that they are not privileged. The burden then shifts to the party seeking protection to demonstrate that the materials in question were prepared in anticipation of litigation. This can be done through an affidavit, deposition testimony, or responses to discovery.

If the court agrees that the materials were prepared in anticipation of litigation, the requesting party must then show a substantial need for the materials and that they cannot obtain equivalent information by other means. It is important to note that even if an exception to the work-product privilege is granted, the court will still protect privileged actions of an attorney by redacting privileged portions of documents.

The attorney-work product privilege can be waived if counsel discloses the work product or materials to a third party, creating a likelihood that a potential adversary in the anticipated litigation will access them. This privilege is designed to protect an attorney's "mental impressions, conclusions, opinions, or legal theories" and encourages open and honest communication between attorneys and their clients.

Accountant-client privilege

Under English common law, on which American law is based, there is generally no accountant-client privilege. In the United Kingdom, the Proceeds of Crime Act 2002 requires accountants to report clients they suspect of tax evasion to the authorities without informing the clients. This legislation carries a maximum punishment of 14 years in jail.

In the United States, the federally authorized tax practitioner privilege is a limited evidentiary privilege available in federal tax law. This privilege is defined in an amendment to the Internal Revenue Code made by the Internal Revenue Service Restructuring and Reform Act of 1998. It applies only to tax advice, which must be treated as confidential by both the accountant and the client. The privilege does not cover general business consultations or personal financial planning advice.

The FATP privilege does not apply in criminal matters or state tax proceedings. It may only be asserted in a noncriminal tax matter before the Internal Revenue Service or a noncriminal tax proceeding in federal court.

The FATP privilege also does not apply to all accountants. It includes attorneys, CPAs, enrolled agents, and enrolled actuaries. The privilege might not apply to certified public accountants who are not licensed to practice in the state in which the client lives.

There is also a crime-fraud exception to the privilege. Where communication is made in furtherance of a crime or fraud, it may not be privileged.

In Texas, a privilege rule requires that a certified public accountant (CPA) not voluntarily disclose information communicated by a client without the client's permission. However, this privilege does not apply in the case of an administrative summons by the Internal Revenue Service, a summons under the Securities Exchange Act of 1934, or a court order.

While the I.R.C. has codified an accountant-client privilege for tax matters, it is very limited in its protection of communications. Because of this limited scope, accountants engaging in sensitive discussions should involve or consult legal counsel.

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