A Brief Overview of Virginia Attorney-Client Privilege Law

As always, before reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link.  As always, any legal principles discussed in this post apply only to the Commonwealth of Virginia.

Introduction

Something I've learned over the years is that most people have heard of attorney-client privilege, but only have the faintest notion of what it means.  I usually hear people explain it as meaning "my lawyer can't repeat anything I tell him to anyone else without my permission," or "no one can ever find out anything my lawyer and I discuss," or "there is no privilege unless I specifically tell my lawyer something is privileged," or some combination thereof.  Of course, I wouldn't be using those examples here if they weren't all wrong to some extent or another.

Because it is critical if you are in a legal situation for you to be able to be candid with your attorney, and as a result it is critical that you understand at least the basics of privilege, with this post I hope to provide a brief overview of attorney-client privilege, how it works, and some of its exceptions.

A Brief History of the Privilege

As you probably know, attorneys have existed in some form or another since the Roman period.  Much of what we think of as the concept of modern attorneys, however, dates back to the Middle Ages in England.  There, leaders began to conclude that there was benefit to having individuals who were learned in laws represent people accused of violating laws so as to free the common people from having to learn all law themselves - and, more importantly, to ensure that courts reached accurate results, despite whatever level of sophistication or lack thereof a specific litigant had.  Central to this idea was the notion that an attorney needed to know the details of his client's case in order to adequately represent them.  The attorney-client privilege was borne out of the idea that a client will not be candid with his or her attorney unless they know that what they tell the attorney will not be told to anyone else.

This is still the philosophical underpinning of attorney-client privilege.  It is so important a part of our adversarial system, that an attorney who violates the privilege can be both disbarred and sued personally for damages.  It is recognized as an element of the Sixth Amendment right to counsel by the US Supreme Court, such that it would be unconstitutional for a court or police force to force your attorney to violate privilege.

So, What Does Privilege Cover?

Attorney-client privilege covers all communications that are exclusively made by a client to his or her attorney or any other attorney at that attorney's firm, any communications that are exclusively made by an attorney to his or her client in which the content of a privileged communication from client to attorney would be expressly or implicitly revealed, and all communications that are exclusively made by a potential client to his or her potential attorney or any other attorney at that attorney's firm.  That's it.

So, a few important things to note about the above.  First, privilege never expires.  Unless and until it is waived, privilege lasts forever, including not only past the end of the attorney representing the client, it even continues past the client's death.  Second, privilege only covers things your attorney says to you if those things necessarily reveal privileged things you have sent to your attorney - otherwise communications from your attorney to you are not privileged (though there are other rules that are weaker than privilege but nonetheless do exist to prevent premature revelation of communications from your attorney to you).  Third, privilege only covers exclusive communications - this means any communication with your attorney where you have a friend listening in on the conversation, or an e-mail in which you have cc'ed a friend, is not privileged.  Some courts (though not all) have ruled that simply sending an e-mail from your work e-mail address is enough to say that the e-mail is not privileged because your employer can presumably read your e-mails.  Fourth, note that it covers all communications within the range of types of communications it covers - so there's no magic words you need to say in order to invoke privilege, it is automatically invoked every time you communicate exclusively with your attorney.  Finally, note that the privilege only covers communications - not things - you cannot give your attorney a box of evidence and suddenly have that evidence be privileged (with some exceptions not worth getting into here).

How Privilege Works

So, now that we know what privilege covers, it's worth discussing how privilege actually works.  So, at its most basic level, privilege means that your attorney not only is forbidden from revealing privileged communications on his or her own, he or she also cannot be compelled by anyone else to do this.  This means your attorney's e-mails cannot be subpoenaed without redactions, your attorney cannot be compelled to testify against you with privileged information, etc.  If the other side in a litigation seeks something that is privileged, your attorney can object, and that objection should be sustained.  In other words, nothing privileged you tell your attorney can be used against you.  Unless the privilege is waived.

How Privilege Gets Waived

So, with that all being the case, it's important to understand that a lot of privileged information loses its privileged status because the privilege gets waived.  Privilege can be waived many ways and for many purposes, both intentionally and unintentionally.  It's important to note, however, that once privilege is waived, it cannot be unwaived, and the covered privileged communications can never again be protected by privilege anywhere.

So, the simplest way to waive privilege is to sign a statement saying "I waive all of my attorney-client privilege rights" - but that would pretty much never make sense to do.  The most common way that privilege actually gets waived is that your attorney reveals some privileged information to the other side, usually because you have specifically authorized your attorney to do this.

Privilege is waived any time privileged communications are revealed to someone other than you or your attorney (or other attorneys in his or her firm).  It does not matter who does the revealing - it can be you or your attorney.  It also does not matter if the revelation was intentional (with some exceptions), or, if it was your attorney who revealed the information, it does not matter if your attorney did it without your authorization.  If your attorney does waive privilege without your authorization, you can report him or her to the bar, and the bar will frequently discipline such attorneys, possibly even disbarring them.  If the revelation ends up hurting you, you can also sue your attorney for malpractice.  Nonetheless, the privilege remains waived.

Now, fortunately, this rule about revelation is not nearly as harsh as it used to be.  Courts recognize the supreme importance of the privilege, and protect it diligently.  As a result, in order for a waiver to be found, it must first of all be the content of the communication that is revealed, not merely the subject matter.  Your attorney telling the other side "my client talked to me today about x" without going into detail of what you said does not waive privilege for your conversation.

Similarly, where waivers are found, the scopes of those waivers are very limited.  With very rare exception, the courts virtually never find privilege to be fully waived.  Instead privilege will only be found to be waived to the extent necessary to reveal the full context of the communication for which privilege was revealed.  For example, let's say you tell your attorney in confidence in one conversation, "I stole Tim's bike and sold it at Joe's pawn shop.  I also stole Jerry's bike."  Then let's say your attorney gets drunk at a party and tells his non-attorney buddy, "my client told me he sold Tim's bike at Joe's pawn shop."  Well, the court is likely to say that privilege has been waived as to the statement "I stole Tim's bike and sold it at Joe's pawn shop," but that it still has not been waived as to the statement "I also stole Jerry's bike."

As you might imagine, privilege is actually waived routinely in most cases.  This is especially true in civil cases, where you may often be telling your attorney something with the express purpose that they will pass that information on to the other side.  Nonetheless, the way privilege gets waived and the limited scope of such waivers is worth remembering.

Exceptions to Privilege

Now, as you might imagine, there are some exceptions to privilege.  These are situations where a communication would normally be privileged, but something about the communication itself or the situation in which it is potentially being used either makes it not privileged, or makes privilege inapplicable.  There are a lot of exceptions to privilege, but most of them are very fact specific.  Here are the most common exceptions I encounter:

• Privilege does not apply during a lawsuit between an attorney and his or her client to the extent necessary for the attorney to be able to adequately represent his interests.  This includes legal malpractice lawsuits by a client against his attorney, defamation lawsuits by an attorney against his client, or collections lawsuits by an attorney against his client.
• Privilege does not apply any time a lawyer faces criminal, civil or bar disciplinary proceedings arising out of his representation of a client to the extent necessary for the attorney to be able to adequately represent his interests.
• A lawyer may waive privilege without consent of the client and without facing discipline or civil action when the privileged communication reveals that the client has, while the lawyer was representing him, perpetrated a fraud on a third party in a matter related to the representation.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing the intent of the client to commit a crime, so long as the lawyer has (if feasible) warned the client of the legal consequences of such actions and that the lawyer would have to reveal the information if the plan was not abandoned first.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that, while the lawyer was representing the client, the client had perpetrated a fraud upon the court related to the subject matter of the representation, so long as the lawyer has (if feasible) first requested that the client him or herself tell the court about the fraud.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that another attorney has engaged in misconduct in violation of the Rules of Professional Conduct.

So, as you can see, the big areas where privilege does not apply are when you have a dispute with your attorney, or the communications that would have otherwise been privileged reveal some ongoing or future wrongdoing on the client's part.

Conclusion

Attorney-client privilege is one of the more complicated areas of legal representation, but also one of the most important for a client to understand.  If you have any questions at all about how attorney-client privilege applies to your case, you should ask your lawyer.