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Does the concept of attorney client privilege apply to workers within the same law practice that are not directly involved with your case as well?

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    A you clarify? If they are not involved in your case how do they know something confidential about your case? Nov 23, 2022 at 18:17
  • I realise now I meant to ask this question about the confidentiality. Im uncertain if I should edit the question but for any future reader considering an answer the OP meant to ask about confidentiality.
    – Neil Meyer
    Nov 25, 2022 at 9:35
  • @GeorgeWhite IT people, accountants and auditors, secretaries, mailroom staff, facilities workers and the janitor all could have access to confidential records.
    – user71659
    Dec 29, 2022 at 20:30

2 Answers 2

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Strictly speaking, the privilege applies only to demands by courts and other governmental entities to disclose attorney/client communications and coinfidential attorney work on behalf of the client.

But attorney/client confidentiality is a closely related ethical principle. It generally binds an attorney not to disclose confidential client information unless either:

  1. the client has consented, or
  2. it is for the client's interest, and is disclosed only to one also bound in confidence.

Law firm policy on disclosure of such information within the firm varies, I understand. A lawyer may consult another member of the firm, and share such info as is needed form that purpose. But lawyers are generally careful not to spread such confidential information more widely than is needed to represent the client.

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  • Also, it extends outside the firm. To expert witnesses engaged to work on the case for example even if they are non-lawyers (which is usually the case).
    – Dale M
    Nov 23, 2022 at 21:54
  • I realise now I meant attorney-client confidentiality. Thank you for answering the question I meant to ask and not just the one I mistakenly asked.
    – Neil Meyer
    Nov 25, 2022 at 9:32
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Basically, the privilege does apply to other members of the firm including non-lawyer staff, although the analysis that gets you there can be a bit involved in some cases.

The Duty of Confidentiality

As @DavidSiegel notes, there is a distinction between the duty to not reveal client secrets subject to certain exceptions, that in all U.S. jurisdictions arises primarily under Rule of Professional Conduct 1.6, Rule 5.1 regarding partners and supervisory lawyers in law firms, Rule 5.2 regarding subordinate lawyers in law firms, and Rule 5.3 governing how the rules apply to non-lawyer assistants in a firm.

The Attorney-Client Privilege

There is a separate body of law that heavily overlaps that governs the attorney-client privilege which is the right to refuse to disclose confidential information of a client to third-parties even in the face of a court order of subpoena that would otherwise compel someone legally to disclose information.

The attorney-client privilege has a couple of components. One is the privilege for confidential communications between a lawyer and a client (which extends to disclosures to other attorneys and staff in the firm with a need to know and people with whom there are joint defense agreements) and the other is the work product privilege which protects work done for a client by a lawyer or the lawyer's law firm in the course of a legal representation of the client (which is almost as strong but has some narrow exceptions that don't apply to the confidential communications privilege).

The work product privilege, like the confidential communications privilege, is not waived or impaired because attorney work product (or attorney staff work product) is shared within lawyers and legal staff in a law firm as necessary to represent a client.

An attorney-client relationship that gives rise to the privilege extends directly from the client to every lawyer in a law firm that works on their case in any way, or is made privy to the attorney-client privileged material regarding the client in any way.

In Colorado, where I primarily practice (which is entirely typical in this regard), this is mostly codified by statute in Colorado Revised Statute § 13-90-107(1)(b) (at pdf page 544) which expressly extends its protections to legal staff by stating:

An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.

There is also a great deal of case law interpreting this statute. The case law establishes, for example, that the privilege belongs to the client and not the attorney or the employees of the attorney.

In federal courts when dealing with questions of federal law, the attorney-client privilege is governed not mostly by state statutes and case law but by the federal common law authorized and developed under Federal Rule of Evidence 501 and Federal Rule of Evidence 502. FRE 501 states:

Rule 501. Privilege in General

The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:

  • the United States Constitution;
  • a federal statute; or
  • rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

FRE 502 states:

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:

(1) the waiver is intentional;

(2) the disclosed and undisclosed communications or information concern the same subject matter; and

(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).

(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:

(1) would not be a waiver under this rule if it had been made in a federal proceeding; or

(2) is not a waiver under the law of the state where the disclosure occurred.

(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.

(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.

(g) Definitions. In this rule:

(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and

(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

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