Are All Conversations With a Lawyer Privileged? Exceptions To The Attorney/Client Privilege~3 min read

We often hear about how communications between attorneys and their clients are privileged, meaning that they are confidential. Therefore, third parties cannot compel either the attorney or the client to disclose the contents of their communications with each other. An aspect of this privilege that is not often discussed is that there are exceptions to the privilege in certain, limited situations.

For instance, communications between a client and a lawyer are no longer privileged if there is a third party involved in the communication. If you bring a friend to a meeting with your lawyer, the contents of that meeting are no longer privileged because the presence of the third party waives the attorney-client privilege. The NH Supreme Court recently issued an order on a matter involving litigation between competing companies and a group of employees which provides clarity on certain issues related to attorney-client privilege.

As part of litigation between competing companies employing medical providers, Company A requested communications between Company B, its employees, and its attorneys during a specific time-frame. While on the surface it may seem as though this request falls squarely under the umbrella of attorney-client privilege, Company A was seeking to show that Company B’s communications with its employees and attorneys during a specified time-frame were exempt from the privilege because of something known as the crime-fraud exception.

The crime-fraud exception says that communications between an attorney and a client are not protected by attorney-client privilege if the lawyer’s services were sought or obtained in an effort to aid anyone in planning or taking any action the client knew or reasonably should have known was a crime or fraud. It is important to clarify that the crime-fraud exception to the attorney-client privilege only applies to plans for future conduct. Communications with an attorney regarding prior bad acts which the client committed without the aid of the attorney do not fall under the crime-fraud exception.

Another exception to the attorney-client privilege that the Court had to consider in this matter was the common interest doctrine. As discussed above, the presence of a third party will typically invalidate attorney-client privilege, because the communications are no longer strictly between the attorney and the client. However, there is an exception to that rule as well, called the common interest doctrine.

This exception provides that when two or more clients consult or retain an attorney on a matter of common interest, the communications between the clients and the attorneys are privileged and therefore exempt from disclosure to third parties. The common interest doctrine applies when there was an action pending at the time the communications in question were made, and the communications pertained to a matter of common interest among the parties.

In this case, Company B argued that the common interest doctrine applied regardless of whether litigation was pending at the time the communication was made. The argument was based on the notion that the privilege should not be limited to pending litigation or to communications made in anticipation of litigation, but rather that the common interest doctrine should apply anytime a communication is made as a part of obtaining legal services on behalf of any of the clients involved, regardless of whether litigation is pending at the time the legal services are sought. The NH Supreme Court declined to accept this argument and held that the common interest doctrine only applies to matters in which an action was pending at the time the communications in question were made.

While PMM Law does not handle criminal matters, we do have experience appellate counsel to handle appeals within the State of New Hampshire on issues of law. If you need help with a complicated legal appeal, please reach out to our appellate team today.