Attorney-Client Privilege and Confidentiality Explained in Plain English

attorney client privilege

The attorney-client privilege is, in essence, the right of both the client and the attorney to be sure that information that the client provides to their attorney cannot be accessed by third parties. Attorney-client privilege is actually an evidentiary rule, that is, a rule of law. This is different from an attorney’s duty of confidentiality to a client (i.e. to hold what a client tells them confidential).

In fact, Black’s Law Dictionary defines “privilege” as “a special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty.”

As Cornell Law explains, “Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret. The privilege is asserted in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath.”

And one of the great legal scholars, and expert on the legal rules of evidence, John Wigmore, stated that the attorney-client privilege exists “(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by him or by the legal adviser, (8) except the protection be waived.”

Or, to put it a bit more clearly, as the Constitution Center has explained Professor Wigmore’s tests:

The communications must originate in a confidence that they will not be disclosed.

This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

The relation must be one which, in the opinion of the community, ought to be sedulously fostered.

The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

Hrrm…perhaps with terms like “sedulously” that isn’t really any clearer. The dictionary defines ‘sedulously’ (from the Latin ‘sedulus’) as “attentive, painstaking, diligent, busy, zealous.”

The bottom line is that the attorney-client privilege is a legal construct that primarily comes up when there is a legal proceeding or other government action.

At the most basic level, in order for there to be an attorney-client privilege there needs to be an attorney, and a client. This may seem obvious, however in order for there to be a client, there must be an attorney-client relationship. This means that there must have been an intent to form an attorney-client relationship, usually an intent that was exhibited by both the attorney and the intended client. (That said, courts often give great weight to the ‘client’ in situations where the individual believed that they had an attorney-client relationship, but in fact technically did not, such as when consulting with an attorney in order to determine whether or not to hire them.)

The clearest way to prove that there was an attorney-client relationship is by the client having retained the attorney. This is demonstrated by both the existence of a retainer agreement signed by both parties, and the client having given a retainer to the attorney (this gets into how a legal contract is formed, which is another subject for another time). That said, again, it has generally been held that the attorney-client privilege can be extended to communications between an attorney and a prospective client, if the client had an expectation of confidentiality.

All this said, even where it may otherwise be found to exist, the attorney-client privilege is not absolute. Even assuming that there is a clear attorney-client relationship, not every word uttered by a client, nor every topic, falls under the protection of attorney-client privilege. It does not extend to all communications between a client and their attorney. And, even where the attorney-client privilege applies, it can be waived or broken, either intentionally or unintentionally (or even unknowingly).

In fact, there are several situations in which either the attorney-client privilege will be considered broken, or never to have existed at all.

For example, there is no attorney-client privilege if the client is telling the attorney something that is already public knowledge.

The attorney-client privilege doesn’t exist if the client is telling the attorney about a crime that they are in the process of committing or intend to commit. In some states the attorney-client privilege doesn’t exist even if the client is telling the attorney about some other action they are intending to commit that doesn’t rise to the level of criminal, but is still actionable under the law – for example a business owner seeking information about how to go about conducting unlawful hiring practices.

The attorney-client privilege also does not exist if the client was not actually seeking legal advice. For example, if a client were to ask their attorney what they considered to be the better vehicle, a sedan or a minivan.

The attorney-client privilege generally doesn’t exist when the client shares the communication in the presence of a third party who is not otherwise related to the subject at hand or not in the employ or an agent of either the client or the attorney.

Finally (at least for the purposes of this article, as of course we could go on and on), the attorney-client privilege can be waived or broken when the client shares the same information with someone else.

Now, if you are reading this article around the time that it was posted, it’s likely that you are reading it as a result of the recent public congressional hearing in which Michael Cohen was testifying. During that testimony, Mr. Cohen indicated that he had about “100 tapes” containing conversations with other individuals that he had taped*, in addition to having taped conversations with his long-time client Donald Trump (President of the United States at the time of the hearing). Mr. Cohen, in his testimony before the congressional committee, then offered to produce the 100 tapes, if the committee so desired.

(*Mr. Cohen’s law practice was in New York, which is a so-called ‘one-party consent state’, meaning that it is permissible to record a conversation even if only one of the parties to that conversation consents (knows about it) – the idea being that it is perfectly legal to record your own conversations.)

This has led to a general outcry – or at least general confusion – over Mr. Cohen making this offer. While he had been disbarred just the day before his testimony, for crimes he had committed, that does not remove the attorney-client privilege for communications that in fact are subject to the attorney-client privilege.

Now remember, again, that there is a difference between the attorney-client privilege (a legal construct), and a lawyer’s duty of confidentiality to a client.

Only a court of law can actually decide whether the attorney-client privilege exists for those tapes. The attorney-client privilege is something that is asserted by one (or both) of the parties in the face of a demand for production of those communications, similar to how a witness or defendant can assert their rights to remain silent under the 5th Amendment.

On the other hand, the duty of confidentiality – to hold their clients’ communications confidential – is an ethical duty and obligation placed on lawyers (which is just another word for attorney) who are admitted to the bar. Most states and state bars follow the model rules of professional conduct of the American Bar Association which say, with respect to an attorney’s duty of confidentiality:

a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Now, when, during the hearing, members of congress expressed shock that Mr. Cohen had offered to provide those tapes of conversations that he had had with other clients, Mr. Cohen replied that those tapes were already in the hands of others. Meaning that even if the content of those tapes would otherwise have been subject to his duty to hold the communication confidential, it had already been exposed to others.

Moreover, if you look at item #6 of the rules of professional conduct above, one of the exceptions to the rule of an attorney holding a client communication confidential is “to comply with other law or a court order.”

We can’t know for sure, because the information has not been provided to the public, but when Mr. Cohen said “others already have the tapes”, it’s likely that he was talking about various law enforcement and intelligence agencies. And certainly providing the tapes to a congressional committee who says that they want them is the functional equivalent of “complying with other law or a court order.”

Some have asked whether, once disbarred, a lawyer is relieved of their ethical duty of confidentiality. That is, of course, an ethical (and moral) question. Lawyers who breach their ethical professional duties are subject to censure, and even disbarment – which of course has already happened in Mr. Cohen’s case.

But even more to the point, nobody – other than Mr. Cohen, the other parties, and those who have heard the tapes – knows who is on the other end of those taped conversations, let alone the subject matter. It’s entirely possible that they were not people who had an attorney-client relationship with Mr. Cohen, or who, even if they were clients, were having conversations that could be considered confidential, let alone privileged. “How’s the weather over there in the city?” is not the stuff of privileged communications.

We will probably never know the content of those tapes, but at least now you hopefully know a bit more about attorney-client privilege.

Can Congress Override a Bill if the President Doesn’t Sign it and Doesn’t Return It with Objections? Vetoes Explained in Plain English

Can Congress Override a Bill if the President Doesn't Sign it and Doesn't Return It with Objections?

Given the current standoff between the House, the Senate (collectively ‘Congress’) and the President over the appropriations in the budget bill, we thought it appropriate to address exactly what is and isn’t a veto, a pocket veto, and a protective return veto or protective return pocket veto.

First a review in case the last time you learned about this stuff was in high school: After Congress has sent a bill to the President for review and either signature or rejection, the President has ten days in which to either sign or reject the bill. If the President rejects the bill, they send it back to Congress with a statement of their objections to the bill (this is called the ‘veto message’).

Once the President rejects a bill and vetoes it, Congress can override the veto, passing the bill into law on their own without the President’s signature – however this requires two-thirds of the House and two-thirds of the Senate to vote to override the veto. This is a very high bar, especially as lawmakers are loathe to override their own party’s president, and getting to a 2/3s majority in both houses usually requires at least some same-party legislators to do that.

Now if, and this is important, during the 10 days after which the President has received the bill the President does nothing (does not sign or return the bill), and if during that 10 days Congress has stayed in session and is not in recess, then the bill automatically becomes law.

On the other hand, if the President does nothing, and during those 10 days Congress is in recess, then the bill dies. This is the essence of a pocket veto.

Specifically, Article 1, Section 7 of the U.S. Constitution states:

“If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

This all makes sense because in the first example, the President could have returned the bill to Congress, but chose not to. In the second example, there is no way for the President to return the bill to Congress if Congress isn’t there.

Article 1, section 7 of the Constitution also outlines the President’s veto power with two types of vetoes: the regular veto, and the pocket veto. Again, a regular veto is when the President refuses to sign the bill, and sends it back to Congress, stating his or her objections to the bill (the veto message), and why he or she won’t sign it, and a pocket veto is when the President does nothing with the bill – refusing to sign it, and rather than returning it to Congress, just sets it aside (“in his pocket”). This brings us back to the rules above: if Congress is in session, then in ten days the bill becomes law even though the President has not signed it (so really this should be called a “pocket acceptance” or a “pocket signature”). If during that 10 days Congress will be out of session, then that becomes a pocket veto.

Now this is very important to note: Congress cannot override a pocket veto. A bill subject to a pocket veto is dead, dead, dead. Congress would have to re-introduce the bill to breathe life back into it. On another, related note, because the bill died in the pocket, and the bill is not (in theory) being returned to Congress with a list of objections, when a President pocket vetos a bill, he issues a Memorandum of Disapproval, explaining why he pocket vetoed it.

The above scenario assumes Congress taking a 10-day break. It also assumes that the bill was returned by the President with remarks indicating their objections to the bill. But what if Congress just breaks for 2 days out of that 10 days? Actually, there is a move to consider any break of 3 days or more as an adjournment such as would allow a pocket veto. This is known, appropriately enough, as the “the 3-day Rule”. In a statement on the issue of 3 versus 10 days, John McGinnis, then of the Federal Office of Legal Counsel, opined that “Article I, section 5 of the Constitution states that neither House, during its session of Congress, shall without consent of the other adjourn for more than 3 days. Thus, we believe that the Constitution implicitly defines an adjournment of Congress, which takes place whenever either House goes out for more than 3 days.”

Or, what if the President refuses to sign the bill, and returns it to Congress, but without a veto message, i.e. without stating their objections to the bill? Can such a bill still be considered to be formally vetoed, such that it can be overridden? Or is this some veto limbo or loophole?

I put these questions to a Federal Congressional research analyst with whom I had a telephone call; they happen to be one of the analysts with expertise on Presidential vetoes.

The first thing they pointed me to was a little-known concept: the protective veto. Basically, in this scenario, the President fails to sign the bill during a period where Congress has taken a break, and claims the pocket veto, and then also sends the bill back to Congress, rejecting it.

Why would they do that? Any number of real or imagined reasons – it’s been done several times since the founding of our county. Most recently by Presidents Ford, George H.W. Bush, and Clinton, and always to the consternation of both lawmakers and the courts.

In fact, President Clinton explained what he was thinking in a statement to the House regarding a bill he had both pocket vetoed and then returned to the house, saying that “Since the adjournment of the Congress has prevented my return of H.R. 4392 within the meaning of Article I, section 7, clause 2 of the Constitution, my withholding of approval from the bill precludes its becoming law. The Pocket Veto Case, 279 U.S. 655 (1929). In addition to withholding my signature and thereby invoking my constitutional power to “pocket veto” bills during an adjournment of the Congress, to avoid litigation, I am also sending H.R. 4392 to the House of Representatives with my objections, to leave no possible doubt that I have vetoed the measure.”

The issue in part is, as mentioned above, that pocket vetoes cannot be overridden, while returned vetoes can. When a President both kills a bill with a pocket veto and returns the same bill, very much alive, to Congress as a regular veto, it not only is hard to know what outcome they intended, but it can throw into question the legality of passing it into law, and individuals affected by the passage or non-passage of a protective vetoed bill may seek recourse in the courts if it is determined that the bill which became the law that affects them was passed improperly because it was dead from pocket veto before it was returned to Congress as a regular veto.

It’s useful to note that so far Congress has treated such double-vetoed bills as surviving the pocket veto when the bill is also returned to them for further consideration.

So what about the other question – can a President derail a piece of legislation by returning it but without any commentary or objections? Is that part of what is required in order for a veto to be properly exercised?

There is apparently no information about this that I could find anywhere, including with the government analyst with whom I spoke. Either it’s never happened, or Congress just considers the lack of written objections to be a general objection.

That said, the Constitution is extremely clear in its language about this: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated…”

“If he approve, he shall sign it, but if not he shall return it, with his objections

In the law, “shall” is highly specific. It doesn’t say that he may, or that he should…it says that he must. ‘Shall’ is imperative.

You can read the full U.S. Constitution here.

So, the bottom line is that a president has two basic vetoes at their disposal: a regular veto, and a pocket veto. The regular veto is returned to the House or Senate, with written objections, so that Congress can revise the bill and send it up again. A pocket veto kills a bill entirely. A protective veto sends mixed messages, and is legally questionable, and so far no president (that we know of) has returned a bill to the House or Senate with no comments or stated objections, but if they did, it’s likely that the lawmakers in Congress would infer the objections, as they would almost certainly already know what they are.

The Mailbox Rule and How it Applies to Email

how the mailbox rule applies to email

The Mailbox Rule (also occasionally referred to as the ‘posting rule’) relates to when something is legally deemed to have been posted, which in turn relates to, primarily, when an offer has legally been accepted in contract law. Of course, we say “post” because up until relatively recently, you put the thing in an actual post box, or mailbox. For purposes of email, an email is ‘posted’ when the email has been sent to its intended recipient.

Note that I said “sent”, not “received”.

Before we go any further, it helps to understand the basics of contract law, specifically the formation of a contract, as this is in large part where the Mailbox Rule has its roots.

The Basics of Contract Law

Very broadly speaking, the key elements that must be present to create a binding, legal contract are:

1. An offer of something
2. The other party’s acceptance of that offer
3. An exchange of value, meaning each party gets something of value out of the deal – this is known as ‘consideration’.

There also has to be an intention to create a legally binding relationship.

Now, of course, as nothing in the law is simple (otherwise I wouldn’t need to explain the law, and all we lawyers would be out of a job), there is a great deal more that goes into forming, and especially proving, a contract. But for the purposes of this article, these are the basics.

What Is the Mailbox Rule?

The Mailbox Rule as first conceived primarily, and most specifically, spoke to item #2 – acceptance of the offer.

The basic concept, first established by case law in the early 1800s, is that the acceptance of an offer is effective when the accepting party posts their acceptance in the mailbox, not when the offerer receives that acceptance. This allows the person accepting the offer to rely on the contract, as at that moment both parties have the intention for there to be a contract. It stops the offerer from deciding that they don’t want to do it after all, while the acceptor is already relying on the contract that they have accepted.

Over time, the Mailbox Rule has been applied to all sorts of scenarios in which Party A sent something to Party B, relying on the near-certainty that the very act of mailing that something to Party B meant that Party B would actually receive it. Of course, we know from the many, many court decisions dealing with (and indeed affirming) the Mailbox Rule that in fact sometimes Party B doesn’t receive whatever Party A sent.

So the Mailbox Rule is, for the most part, what we in the biz call a ‘rebuttable presumption’, meaning that we presume that whatever Party A sent was in fact received by Party B, but Party B has the opportunity, in court, to offer evidence to prove that they never actually received what Party A had sent them (or claims to have sent them).

So How Does the Mailbox Rule Apply to Email?

Of course, the Mailbox Rule, promulgated in the 1800s, could not possibly have anticipated the advent of email. And, as you may imagine, there have been a number of cases dealing specifically with the Mailbox Rule and email, and as you further may imagine, they don’t all agree with each other. Which, of course, makes it more difficult to state one simple rule.

That said the trend is for there to be an emailbox rule – that is, the mailbox rule applied to email.

The Emailbox Rule – or the Mailbox Rule Applied to Email and Other Electronic Message and Communications

Basically, the Mailbox Rule has been held to apply to email and other types of electronic messages in much the same way as the Mailbox Rule applies to paper mail.

The Rule:

There is a rebuttable presumption that once an email or other electronic message has been sent, that it has been received by the intended recipient.

This Emailbox Rule is supported by a line of cases including:

American Boat Company v. Unknown Sunken Barge, 418 F.3d 910 (8th Cir. 2005), which states that there is a “presumption of delivery and receipt of emails properly dispatched.”

Kennell v. Gates, 215 F.3d 825, 828 (8th Cir. 2000), which held that in-house electronic messages are presumed received when properly sent.

United States v. Cary, No. 15-3858 (7th Cir. Mar. 6, 2017), which held that “courts may reasonably presume that electronic messages, once sent, are received.”

Also Ball v. Kotter, 723 F. 3d 813 (7th Cir. 2013) and Couch v. AT&T Servs., No. 13-CV-2004 (DRH)(GRB), 2014 WL7424093.

As a side note, U.S. v. Cary deals with a text message which the defendant’s phone sent to a minor and which the defendant (Cary) says was sent in error, and that anyways there was no proof that the minor had received the message, as she had never responded. Oops, sorry, Cary, the Mailbox Rule applies.

In this day and age of ever aggressive spam filtering, it’s entirely possible that something you sent to someone was not received on their end, or that something you are waiting for but have no received was in fact sent to you, so if you are the sender it behooves you to follow up and check with the recipient to make sure that they have received it; if you are the waiting receiver, check your spam filter.

Why I am Explaining the Law

Hi!  Welcome to Explaining the Law!

I’ve been a lawyer for more than 25 years (see my CV here), and between my law practice, and teaching as a law professor, I’ve become pretty good at providing clear, easy-to-understand, plain English explanations of law, legal decisions, and other legally-related things.

I’ve been asked if there will be a specific topic, or practice area, on which we will focus here, and the answer is ‘no’.  My areas of expertise are Internet and tech law and policy, and family law with an emphasis on the rights of children to have an ongoing relationship with both parents after the disuniting of the family (also known as ‘fathers’ rights’), however my background in legislative authoring and construction also provides me with an ability to tackle breaking down most anything from the legal realm into digestible, bite-sized chunks.

So pull up a chair and let’s get started!
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Anne P. Mitchell,
Attorney at Law