Understand Your Rights. Solve Your Legal Problems
Attorney-client privilege is one of the single most important protections in the U.S. legal system. It lets you talk honestly with a lawyer without fear your words will be used against you. But it’s not a magic shield that covers everything — and recent cases and rules make the boundaries worth checking before you spill everything. Below is a practical, easy-to-scan breakdown so you can understand what’s protected, what’s not, and how to keep your conversations safe.
Most private communications with your lawyer are protected, but the privilege is governed by common law and federal/state rules — not one single statute.
Four conditions usually have to be met: (1) a communication, (2) made in confidence, (3) between privileged persons (you + your lawyer or their agents), and (4) for the purpose of getting legal advice.
Work product is a separate protection that blocks discovery of materials prepared for litigation. It's different from privilege and protects attorneys’ mental impressions and trial strategy.
Major exceptions: crime-fraud (if you sought advice to commit or conceal a crime), waiver by sharing with third parties, and certain disclosure rules around testifying experts.
Federal courts apply a flexible body of privilege law under Federal Rule of Evidence 501, while state courts often follow state privilege law — so the exact contours vary by location and context. In corporate contexts, courts have long recognized privilege can cover communications between employees and corporate counsel when the communications are for legal advice. The Supreme Court’s Upjohn decision remains the leading authority on that point.
Protected communications can be:
Verbal conversations (in person, over the phone, video calls),
Written messages (emails, texts, letters, instant messages),
Documents you send to your attorney (drafts, notes), and
Meetings and interviews arranged to obtain legal advice.
But context matters. Sending a public report, press release, or a document that’s already publicly available doesn’t magically become privileged just because you email it to your lawyer — courts look at whether you had a reasonable expectation of privacy and whether the material was shared for legal advice. If it’s public, it’s harder to argue confidentiality. (Work-product protection might still apply to drafts and attorney notes prepared in anticipation of litigation.)
To be safe, test your communication against these four practical questions:
Is this a communication (not just a public record)?
Was it made in confidence? (Were you alone or with only those needed to help the lawyer?)
Was it to or from a privileged person? (Your lawyer, or someone the lawyer needs like a paralegal or investigator.)
Was it for legal advice or legal services? (Not for business strategy alone.)
If you can answer “yes” to all four, you’re likely protected — but see the exceptions below.
People often mix these two up. Short version:
Attorney-client privilege protects confidential communications between client and lawyer.
Work product protects materials prepared in anticipation of litigation (lawyers’ notes, strategies, drafts). The work-product rule is codified in Federal Rule of Civil Procedure 26(b)(3) and related Civil Rule amendments limit discovery of certain expert communications.
Work product can be harder to pierce than privilege because courts shield the lawyer’s mental impressions. But both protections can be lost if you share documents widely or use them publicly.
Crime-fraud exception. If you used legal advice to plan or hide a crime or fraud, the privilege doesn’t apply. Courts may do an in-camera (private) review to decide this. Key cases and rules support this exception.
Waiver by disclosure. If you share privileged communications with third parties (friends, on social media, or employer-monitored work email), you may waive the privilege. Employer monitoring policies and shared devices can be pitfalls.
Presence of third parties. A conversation overheard or attended by outsiders usually loses privilege — unless those third parties are agents of the lawyer (interpreter, investigator) and necessary for the legal advice. Spouses are not automatically safe third parties.
Communications with testifying experts. Recent Civil Rule changes protect some attorney-expert communications, but experts’ factual materials, drafts, or compensation details can be discoverable. Courts distinguish retained, testifying experts from consulting experts.
When a company hires counsel, communications with that counsel may be privileged — but courts look for intent: were the communications made to get legal advice, or were they purely business instructions? The Supreme Court’s Upjohn decision made clear that communications from employees to corporate counsel can be privileged when they were requested to secure legal advice for the corporation. That said, recent litigation shows courts still scrutinize internal investigation records and their dual legal/business uses.
Short answer: Maybe — but be careful.
Use personal, secure accounts and avoid employer-monitored systems for lawyer conversations.
If you use shared or company devices, courts have found privilege can be weakened or lost.
For highly sensitive matters, ask your lawyer about encrypted messaging or secure client portals.
Make the purpose clear. When you send a message, label it “For legal advice — privileged and confidential.” It’s not foolproof, but it helps.
Limit the audience. Only include people who need to be there (lawyer, interpreter, necessary assistant).
Avoid public or monitored channels. Don’t use work email, group chats, or social media to discuss confidential matters.
Ask for an Upjohn warning (corporate cases). If you’re an employee speaking to corporate counsel, ask whether counsel represents you or only the company (this protects your expectations).
Preserve documents carefully. If litigation is possible, preserve relevant documents and consult your lawyer about privilege logs and redactions.
You text your lawyer from your personal phone about a criminal charge: usually privileged.
You post details of your legal problem on Facebook and then email your lawyer the post: likely waived.
A company’s internal investigation report sent to outside counsel: may be privileged if done to get legal advice — but courts will test whether the primary purpose was legal, not business. Recent appellate rulings have revisited these lines.
Q: Are texts with my lawyer confidential?
A: Generally yes — if sent privately and for legal advice — but not if sent via an employer-monitored phone or forwarded to others.
Q: Can my lawyer be forced to testify against me?
A: Usually no — privilege prevents compelled testimony about confidential communications — except under exceptions like crime-fraud or waiver.
Q: If I email a public document to my lawyer, is the email privileged?
A: The communication about that document may be, but the public document itself isn’t confidential simply by attaching it.
Q: Does my spouse’s presence break privilege?
A: Sometimes. A spouse who’s only there as a translator or necessary participant may not destroy confidentiality — but it’s fact-specific.
Q: What happens if privilege is disputed?
A: Courts can review documents privately (in camera) to decide if the crime-fraud exception applies or if communications are truly privileged.
