Attorney-Client Privilege Is Vital, but Know Limitations
EXECUTIVE SUMMARY
Healthcare organizations can benefit from attorney-client privilege, but it is often misunderstood. Risk managers should know how this privilege works and educate others.
- The privilege applies only when obtaining legal advice.
- Simply declaring the privilege does not work.
- The privilege can be lost if the information is conveyed to a third party.
Attorney/client privilege can be vital in defending malpractice cases and managing other risk management issues. But sometimes, it is misunderstood by risk managers in healthcare, and missteps can have significant implications. Understanding attorney-client privilege is the first step to taking advantage of this important protection.
In general, the attorney-client privilege protects from disclosure confidential communications between lawyers and their clients to obtain legal advice, explains Catherine F. Wrenn, JD, an attorney with Baker Donelson in Charleston, SC.
Privilege can protect verbal as well as written communications, and it can be used to protect privileged conversations and documents from discovery in the event of a lawsuit. The privilege exists to help attorneys and clients have full, frank, and open communication with each other, Wrenn says.
“The attorney-client privilege is especially important for clients who operate in heavily regulated industries, like the healthcare industry. Those clients have to comply with a plethora of complex and ever-changing laws,” she says. “They often seek the advice of counsel to help them address regulatory compliance concerns or violations, and the privilege allows them to seek that advice without the worry of disclosure.”
Healthcare providers should consider the effect of having an internal or compliance investigation protected by the attorney-client privilege, Wrenn says. If the investigation is undertaken at the direction of legal counsel and to obtain legal advice, there is a good argument that the attorney-client privilege protects from subsequent disclosure confidential interviews with the provider’s staff and documents created by the provider’s counsel about his or her legal analysis, advice, and recommendations regarding the investigation.
The client can waive privilege by revealing the substance of the protected information to a third party, such as forwarding an attorney-client privileged email to a friend, Wrenn says. “The attorney-client privilege does not protect every communication with or every email to a lawyer. It only protects those which occur for the purpose of obtaining legal advice,” she explains. “Simply copying an attorney on an email or writing ‘attorney-client privileged’ at the top of a document does not make the email or document privileged.”
Attorney-client privilege often is not addressed thoroughly in training for compliance counsel or risk managers without a legal background, says Ryan O’Neill, JD, partner with Riker Danzig in Morristown, NJ.
“I’ve seen the worst-case scenario, where communications that were intended to be private between a client and attorney ended up with the privileges destroyed,” she says. “The first thing you need to know is that communications between you and the attorney is protected as legal advice. Not necessarily facts, not business advice. Legal advice.”
Cannot Simply Declare Privilege
Misunderstandings about privilege can occur regarding conversations with in-house counsel and attorneys that are not necessarily investigatory, O’Neill says. The risk manager or administrator may be talking about business and expecting that to be protected.
“Just because an attorney is on the communication does not automatically render the communication privileged. It has to be in furtherance of legal advice, which covers a lot but not everything,” O’Neill explains. “Also, the intent of your communication must be to keep it confidential. The problem I run into a lot with clients is in kicking emails out between them and their attorneys to a third party, law businesses, wife, husband, niece, co-owner, shareholder, or to their accountants. If there is direct evidence that you did not intend to keep the communication confidential, you break that privilege by sharing it with a third party. It happens.”
People sometimes think that declaring a communication protected by attorney-client privilege makes it so, says Laura McLane, JD, partner with McDermott Will & Emery in Boston. A document or communication does not become privileged simply by copying a lawyer on it.
“You often see people saying ‘attorney-client privilege’ in the subject line and expecting that to provide protection. It has to be a communication for purposes of assisting in the provision of legal advice, whether by in-house counsel or outside counsel,” McLane says. “People communicate with lawyers in lots of ways for lots of reasons, but that doesn’t necessarily mean that the document or communication is going to be privileged.”
McLane suggests educating employees about that point to avoid the disclosure of information that may not be protected in litigation.
To qualify for privilege, communication must be between the attorney and the client, notes Michael Vater, JD, managing partner with The Ticktin Law Group in Deerfield Beach, FL. If a person or organization communicates information to an attorney but is not that lawyer’s client, the communication is not privileged.
“It also has to be done in a confidential setting. If you’re in a chat room, or out with other folks at a professional conference, that does not apply if you start talking about confidential things, even if that is your attorney,” Vater says. “If you’re having a communication that is visible to the general public, that doesn’t qualify, either.”
Another pitfall involves communication that originated outside of the attorney-client relationship. “In a healthcare setting, let’s say a doctor sent a nurse a document or some form of communication, and then later that doctor then sends it to the attorney,” Vater explains. “Because that communication originated outside the attorney-client relationship, it doesn’t automatically become privileged now that it’s been revealed to an attorney.”
Covers Written Communications
The privilege covers not only what is said but also written communications, emails, letters, and other forms of communication exchanged in confidence, says Paul F. Schmeltzer, JD, senior attorney with Clark Hill in Los Angeles. Attorney-client privilege is an important aspect of the legal system that protects confidential communications between a client and his or her attorney.
In healthcare, the attorney-client privilege can be applied in numerous instances, Schmeltzer says. For example, it can protect reports prepared by a healthcare company’s administrative assistant during a post-incident investigation at the direction of the company’s in-house legal department, particularly if the report is prepared to aid in-house counsel in addressing issues of liability and potential litigation. The privilege also may encompass communications between in-house counsel and multiple lower-level employees when these communications are made to secure legal advice.
“In addition, the privilege can be applied to hospital employees, such as social workers and nurses, who have direct knowledge of events triggering litigation,” Schmeltzer says. “The privilege can also apply in the context of a data security breach in a healthcare provider’s computer network. Here, it can protect communications between the healthcare provider and their legal counsel and third-party forensics vendor.”
Privilege is considered waived if the client voluntarily reveals otherwise protected communications to third parties or if they fail to take reasonable steps to keep the communication confidential, Schmeltzer notes. Privilege may not apply if the communication is made with the intent to further a crime or fraud.
“Furthermore, courts often interpret the application of attorney-client privilege narrowly because it has the potential to shield relevant information from discovery and limit the truth-seeking function of the adversarial process,” Schmeltzer says. “To prevent the privilege from being voided, maintain strict confidentiality when discussing legal matters with attorneys, ensuring that only necessary individuals are privy to the privileged information. Clearly label communications as privileged and limit dissemination to those directly involved in the legal matter.”
Misapplication of privilege generally occurs where there is confusion regarding which communications are privileged, especially in interactions involving multiple parties. “There is certainly the potential for abuse of the attorney-client privilege. Some individuals or organizations may attempt to abuse privilege to conceal illegal activities or fraud,” Schmeltzer says. “Privilege might be exploited to manipulate legal proceedings or withhold information detrimental to one party’s case. To prevent abuse, it’s essential for attorneys to uphold ethical standards and for clients to understand the limitations and responsibilities associated with privilege.”
SOURCES
- Laura McLane, JD, Partner, McDermott Will & Emery, Boston. Phone: (617) 535- 4410. Email: [email protected].
- Ryan O’Neill, JD, Partner, Riker Danzig, Morristown, NJ. Phone: (973) 451-8592. Email: [email protected].
- Paul F. Schmeltzer, JD, Clark Hill, Los Angeles. Phone: (213) 417-5163. Email: [email protected].
- Michael Vater, JD, Managing Partner, The Ticktin Law Group, Deerfield Beach, FL. Phone: (954) 570-6757. Email: [email protected].
- Catherine F. Wrenn, JD, Baker Donelson, Charleston, SC. Phone: (854) 214-5914. Email: [email protected].
Attorney/client privilege can be vital in defending malpractice cases and managing other risk management issues. But sometimes, it is misunderstood by risk managers in healthcare, and missteps can have significant implications. Understanding attorney-client privilege is the first step to taking advantage of this important protection.
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