As George Harrison crooned this 1964 hit on the “Please Please Me” album by the Beatles, his target audience likely featured hordes of screaming admirers in Liverpool. But what if he had asked this question of an attorney while on U.S. soil? Could his legal counsel “promise not to tell”?
Like the Fab Four, the answer takes us back to England, albeit in the 1500s (slightly before the Beatles’ appearance on “The Ed Sullivan Show”). It was during the reign of Elizabeth I when the legal system first recognized the attorney-client privilege. This is one of the most important elements of the legal profession: that communications made in confidence between attorney and client are protected from disclosure to the outside world.
The Missouri Supreme Court further explained this concept when it stated, “As long as our society recognizes that advice as to matters relating to the law should be given by persons trained in the law — that is, by lawyers — anything that materially interferes with that relationship must be restricted or eliminated, and anything that fosters the success of that relationship must be retained and strengthened.”
The reasoning behind this privilege is so that clients can speak freely about facts in the case without fear that their own remarks will be counted against them. Equipped with the true facts regarding a case, the attorney can then put together the best line of legal strategy for a client. This all-important privilege applies to litigation matters, corporate consultations and estate planning conversations.
At the same time, many of us can remember the warnings from parents that certain conduct could cause us to “lose a privilege.” The same holds true in law, because the attorney-client privilege can be “waived” or “lost” by certain activity. That is because the privilege is held by the client, not by the attorney. A client has a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications between himself or herself and a retained lawyer.
First, privileged communications must be made in confidence. Suppose a client brings a visiting relative into the conference room for convenience’s sake. If that aunt or uncle has no common interest in the legal consultation, his or her mere presence will likely prevent the creation of the attorney-client privilege. Likewise, all clients must be careful not to share or reveal the substance of attorney advice/counsel with others, especially by email. Avoid the temptation to use “chain emails” when engaging in electronic communications with your lawyers. If there are doubts whether to discuss “legal advice” with a co-business owner or manager, make a precautionary inquiry about that step with your attorney, not with your business cohort. As a matter of law, the attorney-client privilege may be waived by a voluntary, unintentional or inadvertent disclosure. And, once the privilege is found to be waived by a judge, it cannot be reinstated, and valuable information could fall into the hands of an opposing party.
It is also well established that the attorney-client privilege does not apply if the communication involves plans to commit a crime or fraud. In such instances, the Missouri Rules of Professional Conduct require that an attorney withdraw from the representation.
Your attorneys can provide the best legal counsel when all the information is out on the table. Some facts are difficult to tell, though an unrevealed “secret” will often be uncovered during a legal proceeding.
By the time George Harrison finished the famous chorus of “Do You Want to Know a Secret” (it was the first top 10 song in the U.S. to feature him as a lead singer), the entire audience knew all about his intentions. But here’s a secret we want you to know.