To best protect clients, we need to be sure the attorney-client relationship is clear, to avoid any potential problems that could arise during litigation.
In most cases, where a client comes to you for advice about a specific matter and then retains you for a particular case, the rules governing attorney-client privilege can be quite straightforward. Other matters are not nearly as simple.
For example, the newly hired business manager of a young performer recently contacted me and said that she had reason to believe that the performer’s former business manager had been stealing from her.
I wanted to be able to help out, and if evidence of the theft was found, potentially sue the former business manager for fraud and conversion.
However, it occurred to me that, before meeting with the potential client, I needed to first clarify my relationship among the different people involved in the situation. The last thing I would want is for a potential adversary (the former manager) to get access to information, or to seek testimony, of discussions that should be treated as privileged.
Yet, if you are not careful, this is exactly what can happen. If we moved forward and brought suit against the former manager, his attorney might try to depose my client’s new manager, and ask the manager what I told the client in preparation for litigation. My adversary might argue that the client waived her attorney-client privilege by having her manager in the room when we provided legal advice.
The general rule is that voluntarily disclosing confidential information to a third party waives any attorney-client privilege that would otherwise apply. Luckily there is an exception to this rule:
When the communication is disclosed to a third party, and that third party is an “agent” of the client, the privilege remains intact. So to argue that the information discussed is still privileged, you have to show that (a) the client reasonably expected that disclosing the information in question to the third party would keep it confidential and (b) that disclosure to the third party was necessary for the client to obtain informed legal advice.
So, as long as the new manager is acting in the capacity as an agent for the performer and we are discussing confidential information necessary to the representation, the information disclosed is protected.
The key is to address these sorts of issues early on, and clarify them before beginning the process of representing a new client.
