It happens often: a client will say something like, “the attorney is on the call so this entire conversation is confidential” or “I’ll just copy the attorney on the email, and it will be confidential.”  Is this true?  Not always!  The answer depends on if the attorney-client privilege applies to the communication, and whether the privilege has been waived.

The Basics of Attorney-Client Privilege

The attorney-client privilege protects confidential communications between an attorney (and the attorney’s representatives) and their client (and the client’s representatives) that are made for the purpose of seeking or providing legal advice or representation.  This is a two-part test: first, the communication must be confidential, meaning it cannot include individuals who are not covered by the privilege; and second, it must be made for the purposes of seeking or receiving legal advice or representation.  In order for the privilege to apply, both parts of the test must be satisfied.

So, for example, if a city employee sends an email to a city resident and the city attorney asking about a vote the council took at its last meeting, the communication is not “confidential” as the resident is not covered by the privilege.  Similarly, when a member of a district board asks for advice from their attorney during a public meeting of the board, the communication is made in public and therefore not confidential or covered by the attorney-client privilege.

Likewise, because the privilege only applies when seeking or providing legal advice or representation, it is not sufficient to simply “cc” your attorney on a communication; even when the communication is confidential, if it does not involve legal advice or representation, then the privilege does not apply.  The same is true for conversations and meetings involving an attorney.  If the purpose of the communication does not involve legal advice or representation, the privilege does not apply.  Merely having an attorney in the room for a meeting or conversation does not automatically make the entire discussion privileged.

To that end, if you desire communications with your attorney, whether verbal or written, to be protected by the privilege, it is always important to ensure that those communications are confidential and seek or actually provide legal advice.

Waiver of the Privilege

The client holds the privilege, meaning if something is protected by the privilege, the client decides whether the information must stay confidential or may be disclosed (“waiving” the privilege).  For local governments, the entity, such as the city, county or special district, is the client, and only an authorized representative of the entity may decide to waive the privilege.  For example, in a city, whether or not to waive the privilege most often must be decided by the city council or another official, such as the city manager or a department head who has been delegated authority over a certain issue by the city charter or the council.  Individual members of the council or other employees may not waive the privilege on behalf of the city.

We often encounter an individual seeking to waive (or inadvertently waiving) the privilege without authorization.  For example, a member of a city council may ask for legal advice during a public meeting or an employee may forward an email from the city attorney to a person not associated with the city, such as the other party in a contract negotiation.  These unauthorized releases of confidential communications can create problems for your entity and should be avoided.

So, what happens when a person who is not authorized to do so discloses a communication covered by the attorney-client privilege?  Well, first of all, the advice has now been shared publicly, which could jeopardize the legal position of the entity and create liability even if the privilege is not technically waived.  Second, the entity may need to take action to try to keep the communication from further disclosure, such as seeking a protective order from a court.  And finally, it is possible under some circumstances that even an unauthorized release of information could result in an actual waiver of the privilege, which could require disclosure of other communications between the entity and its attorney on the same subject matter.  All of these outcomes damage your entity and its legal positions, and the unauthorized disclosure of privileged communications should therefore be avoided.

For these reasons, whenever you have a communication with your attorney, whether verbal or written, you should be especially careful about sharing it with anyone not covered by the privilege.  This is true even if you share the information with a community partner, neighbor, spouse, public commenter, contractor, etc.  Regardless of the intent, if you share the communication, you may inadvertently create waiver issues and liabilities as discussed above.

As always, please do not hesitate to contact any of the attorneys at BEH if you have questions about the attorney-client privilege or whether and when to share communications from our office.