The subject of attorney-client privilege is one that is commonly misunderstood by laypersons, including sophisticated businesspeople, and even many attorneys. Unfortunately, many people get their information regarding the attorney-client privilege from popular media and the dramatized fiction of “Courtroom thrillers” which use the privilege as a storytelling device to great effect.
Contrary to the Hollywood depictions of attorney-client privilege that all communications between any person and a lawyer are privileged, in the non-fictional world attorney-client privilege is a much more narrow protection.
In Pennsylvania, the attorney client privilege attaches only if the following four factors are present in any individual communication: 1) the person making the communication is a client or seeks to be a client; 2) the person to whom the communication is made is a lawyer and member of the Bar of a Court or his subordinate; 3) the communication relates to a confidential fact of which the attorney was informed by the client, outside the presence of strangers, for the purpose of securing either an opinion of law, legal services, or assistance in a legal matter and not for the purpose of committing a crime or tortious act; 4) the privilege has been claimed and not waived by the client or potential client. Communications from the attorney to the client are subject to attorney-client privilege only insofar as they contain, and thus would reveal confidential communications from the client.
In practical terms, what this means is that clients or potential clients should avoid airing their legal issues on the golf course or at cocktail parties in an attempt to solicit “free” legal advice or to test whether an acquaintance lawyer is interested in the potential client’s legal matter. These communications may not be privileged, and the lawyer or others who are present during the communication may be called to testify in litigation regarding the communication.
The best practice is always for potential clients to schedule a meeting with the lawyer in the formal setting of the lawyer’s office so that there can be no mistake that the purpose of the meeting is for legal advice, and ensuring that the privilege will withstand scrutiny in future litigation. Existing or recurring clients should always make it clear to the lawyer that they are seeking legal advice before revealing confidential information.