Every state in the Union recognizes and protects the attorney-client privilege. New York’s version of this privilege is in Civil Practice and Rules Section 5.03. The privilege applies to most confidential communications that relate to legal services. Partners, such as husbands and wives, doctors and patients, or lawyers and clients, must be able to communicate with each other fully and openly. 

Usually, Section 5.03 applies not only to lawyers, but also to a lawyer’s agents or employees. This category usually includes expert witnesses, although they aren’t technically employees or agents. The basic attorney-client privilege is automatic for attorneys, however these attorneys must draw up a separate agreement to extend the privilege to their agents and employees.

Open communication is important to build a case, as outlined below. A good personal injury lawyer proactively communicates with clients, to keep them informed about matters like case status. This open communication should include solid advice based on the facts and the law, not what the client wants to hear. Open communication is a two-way street. If you have a concern, question, or comment, your lawyer should promptly address it.

Why This Privilege Matters

In personal injury cases, this privilege usually applies to skeletons in the closet, unfavorable facts, and communications regarding settlement matters.

Insurance company lawyers dig extensively into a victim’s personal matters. If an attorney immediately knows about the problem, an attorney can plan a work around.

Successful negotiators have a good poker face. The insurance company should not know about things like a victim’s motivation to settle, need to settle, or bottom-dollar settlement figure.

What’s Confidential

The privilege doesn’t apply to every face-to-face conversation, email string, or phone conversation. Instead, it applies if:

  • One party was a client or potential client (the distinction between clients, potential clients, and “just asking” clients is hard to pin down),
  • The other party was a lawyer or a lawyer’s agent, as discussed above, and
  • The private communication involved legal matters or legal advice, as opposed to billing or other such information.

Ultimately, a judge, not an attorney or client, decides if the privilege applies. This issue often comes up during discovery, a pretrial information exchange process.

Frequently, insurance companies and personal injury lawyers make broad discovery requests. They want all medical bills, witness statements, among other important documents.

If the requested information contains privileged information, many attorneys redact the documents. Lawyers submit privileged information to the judge, but not to the other lawyer. If the other lawyer wants to know what information was redacted or withheld, that lawyer needs a court order.

What’s Not Confidential

Some 5.03 exceptions are based on the privilege itself.

Communications are private if both parties had a reasonable expectation of privacy. Face-to-face conversations in an office are private. Face-to-face conversations in a coffee shop usually aren’t private. For that reason, most lawyers prefer to communicate with clients via snail mail, face-to-face office conversations, or phone calls not on speakerphone.

On a related note, if someone else is in the lawyer’s office, like a secretary, legal assistant, or client’s parent, the privilege might not apply.

Independent, court-related exceptions might apply as well. Certain communications aren’t privileged even if they meet the aforementioned three-prong test. They include:

  • Crime/Fraud: The privilege doesn’t apply to future or possible crimes. In fact, lawyers usually have a legal duty to support such matters. If Bill says he killed his boss, the communication is protected. If Bill says he plans to kill his boss tomorrow, that’s not protected.
  • Attorney-Client Dispute: The 5.03 privilege promotes an attorney-client partnership. If that partnership breaks down, the policy consideration supporting the privilege vanishes. Therefore, confidential communications are fair game.
  • Public Policy: According to one court, this murky exception applies “even where the technical requirements of the privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure.”

Other communications are in a gray area. For example, in New York a court might compel a lawyer to reveal a client’s identity.

Open communication is a cornerstone of any relationship. For a free consultation with an experienced lawyer, contact Napoli Shkolnik.