Confidential & Privileged Communications with Legal Counsel
When involving attorneys in the OVPGC in your discussions and communications, it is important to understand what may be protected by attorney-client privilege and what may not.
What is the attorney-client privilege?
Attorney-client privilege is a legal privilege designed to protect communications between a lawyer and a client that are part of a legal relationship and that are intended to be confidential. The privilege was created to encourage open and honest communication between clients and their attorneys.
Protected from what?
Privileged communications are protected from disclosure by either the attorney or the client during discovery in a lawsuit, unless the privilege is waived through an intentional disclosure of the privileged communication. The privilege could also protect communications from being subject to mandatory disclosure under open records laws. Within the University context, the privilege can only be waived by Indiana University itself, and in general, employees cannot waive the privilege.
What is privileged?
- Legal Advice: Communication with an attorney, from either the OVPGC or an outside law firm retained by the University, for the purpose of getting legal advice will be privileged.
- Communications about Legal Advice: Management-level discussion of legal advice given by an attorney will also be privileged. As long as the people discussing the legal advice share some level of responsibility for the subject matter underlying the advice, the discussion will be privileged.
- Work Product: Documents prepared by attorneys in anticipation of litigation are protected under a separate type of privilege called the work-product doctrine. The work-product doctrine can only be asserted by an attorney on his or her own behalf. It was designed to protect an attorney’s thought processes and mental impressions against disclosure. Materials that an attorney asks a non-attorney to prepare can still be considered work product, as long as they were prepared in anticipation of litigation. Materials created in the ordinary course of business will not be considered work-product and will therefore not get the same protection.
What is not privileged?
- Facts: Facts communicated to an attorney do not become privileged. Only the communications between an attorney and client are privileged. This may seem contradictory, but the law does make this distinction. A relevant fact cannot become privileged simply because someone has communicated it to his/her attorney. This prevents clients from telling attorneys facts simply for the purpose of concealing them.
- Business Advice: If an attorney is providing general business or management advice, this is not privileged because it is not legal advice.
- Emails that Copy an Attorney, But Do Not Seek Legal Advice: Copying an attorney on an email will not automatically make the email privileged. The email will need to be for the purpose of obtaining legal advice or assistance. In a similar vein, simply having an attorney present for a meeting will not make the meeting’s contents privileged unless the meeting is for the purpose of obtaining legal advice.
- Preexisting Documents: Documents that already exist will not become privileged just because they are shared with an attorney.
If you have further questions regarding the nature and scope of attorney-client privilege, please feel free to contact the OVPGC for additional guidance.