In Episode 24 of Environmentally Speaking we discuss Attorney-Client Communication. It is important to look at the foundation between you and your attorney. What does that relationship look like? What are you both getting yourselves into? How many days before you can text back after the initial meeting?
Communication between an attorney and their client is so sacrosanct and so important that it requires an extra level of protection so that the parties can feel free to speak frankly and honestly without fear that the communications are going to be subject to later cross-exam ridicule and questioning in front of other people.
EP 24: Attorney-Client Communication
CLARICE: Good morning, everybody. This is Environmentally Speaking.
MARISA: I’m Marisa Desautel an environmental attorney with about a decade or more actually of experience. I got to keep the years up. .
CLARICE: It’s going to be weird when your intro changes.
MARISA: I know. We’re creeping up on a change in time frame, though. Can’t ignore that.
CLARICE: Good news is my intro will always stay the same. I’m Clarice. I’m coming at you with your questions, comments, things to talk about.
MARISA: What are we talking about today?
CLARICE: Today we’re talking about the attorney-client relationship. It’s not our sexiest subject. It’s not our most exciting, so today’s episode might be on the shorter side, but it is important. It is important to look at the foundation between you and your attorney. What does that relationship look like. What are you both getter yourselves into. How many days before you can text back after the initial meeting. It’s very stressful.
MARISA: You don’t want to seem too eager.
CLARICE: Yeah got to play it cool. But also I actually had somebody reach out with a nuance question that we’ll get into later. So I think it might be best just to lay the foundation.
MARISA: All right. Yeah. And as maybe you guys know, we try to pick topics that are timely and relevant to what’s going on in the practice during the week and it just worked out this week that I had two different clients present with questions about the attorney-client communication privilege. In Rhode Island there are certain categories of correspondence and communication that are strictly confidential in terms of whether a tryer of fact, either the judge or the jury or someone questioning on cross-examination can require a party to testify and divulge conversations between another party that society has decided are so important they should remain confidential if the parties want them to remain confidential.
So in the context of attorney-client privilege, the concept there is that the communication between an attorney and their client is so sacrosanct and so important that it requires an extra level of protection so that the parties can feel free to speak frankly and honestly without fear that the communications are going to be subject to later cross-exam ridicule and questioning in front of other people. So that’s the basic framework for the attorney-client privilege.
[0:02:58] CLARICE: So essentially this relationship is so important to the clients on an extreme end, their rights, their privileges, and future freedoms that they’ve created laws to say, you can speak with your attorney freely and almost you get to decide what gets shared and what doesn’t.
MARISA: That’s right.
CLARICE: I was going to say my understanding is correct that the client gets to decide what out of those communications gets shared, not the attorney.
MARISA: That’s right. That’s right. Only the client can waive the privilege if they want to. I’m trying to think of another example. The husband-and-wife confidentiality is another similar and important example where communications between a husband and wife are considered so special that they’re not subject to questioning. And just like attorney-client privilege, the privilege can be waived but by both parties in the context of husband and wife. With attorney-client it makes sense that it can’t be the attorney that decides to waive that privilege. It has to be the client because they’re the ones that are frankly paying for the service and are relying upon the advice given. So the attorney just does their job and then the client carries the burden but also the benefit of deciding if they want to share the advice that the attorney has given them.
CLARICE: We’ve so far only been speaking about this relationship with the one attorney and one client. I kind of want to go into adding a couple other factors here. That relationship also extends to those working in that attorney’s office.
MARISA: Yes.
CLARICE: In that same sense, me sitting as a paralegal, if you have a conversation with me about information or if I sit in on a meeting between you and your attorney I also am held to that high level of I can’t say anything unless, you know, given permission to. And, frankly, I don’t think there’s ever a time when the paralegal is allowed to say something and the attorney isn’t, so very rarely would I share.
MARISA: I was going to say that in my practice when I’m giving advice to a client I never have anyone else around just because you don’t know. You know, there’s some sneaky attorneys out there – shocking – that will still try to get the client to divulge the information and you don’t want to be in a situation where even if it is a paralegal that is working for the firm you don’t want to give the other side an opportunity to even make that argument in my opinion.
I feel like let’s just be super safe and secure in the advice and only have the communication exist between the attorney and the client. Now, that changes a little bit when you’ve got a group client. If you represent a neighborhood group which is pretty common in my practice or nongovernment organization and nonprofit, or a board, there’s often more than one person. In that context you can have communication with more than one person at a time because that entire group is your client. Does that make sense?
[0:06:37] CLARICE: Yeah. I’ve noticed, too, just as maybe a practice or a habit a lot of times these groups will have elected a point person to kind of maintain that relationship. That’s not to say that other members of that group don’t also get access to advice and information that the attorney is providing. Sometimes something to think about is maybe designate one or two people to streamline that because if you have a group of 30 plus people and you’re looking to have a meeting, 30 plus schedules can be a bit much. But if you’ve got your three main point people, it could just help for efficiency’s sake.
MARISA: Yeah. And I require that because if you’ve got a group client and there’s 20 people every time a person has a question and sends an e-mail or a text message or makes a phone call you have to charge the client, so there goes your retainer within the first couple of weeks. So it makes more sense for everyone involved to have one organizer, point person speak on behalf of the group in terms of if the group has questions or needs work product from you or wants to have a meeting. Then that way you’re just communicating directly with one person.
CLARICE: Like we said, having a point person doesn’t reduce the relationship and obligation between the other members and the attorney.
MARISA: Right.
CLARICE: It’s just a more efficient way of working.
MARISA: Agree.
CLARICE: All right. So important, not terribly exciting, but the foundation of your relationship when you’re hiring an attorney. You should know what does that confidentiality look like. What can I expect from that attorney and, you know, how are we going to be communicating. So not our most exciting topic but very important.
MARISA: No. But, you know, it’s funny, when we first logged on here this morning I said, I just don’t think, you know, five minutes, ten minutes max, but now that we’re talking about it I’m thinking about scenarios that have come up during the scope of my practice that are attorney-client privilege related. So anyone that does litigation is going to run into these issues.
And then even in the context of, let’s say, wills and trusts, probate practice, you’ve got issues that arise during the scope of those practices, as well, real estate closings. The rule is the attorney-client privilege does not cover every single communication that you have with your attorney. So, for example, if I have a client call me and say, what kind of wine do you drink at Christmastime because they want to send a bottle over or vice versa, that’s not protected conversation.
[0:09:46] CLARICE: Uh-huh.
MARISA: I don’t know why anyone would care about that conversation, but that’s not protected. The exchange has to be, number one, between the attorney and the client and no one else, so it’s not waived. The privilege is not waived. Number two, the conversation has to be about either the client asking for legal advice or the attorney giving legal advice. That’s it. It’s a very confined scope of communication. So I wanted to share that, as well. That’s important.
CLARICE: Would the advice extend over discussing next steps of the case and how you and the client will proceed with the case?
MARISA: Yes.
CLARICE: I don’t want to say your game plan, but yes.
MARISA: Strategy, yes. Yes. If there is an element of legal advice given in there, yes. And it does include strategy.
CLARICE: It’s important stuff. Yeah. All right.
MARISA: It can be very nuanced, too. When you get into the courtroom and you’re duking it out with the other side and they’re trying to get into what your attorney told you and there’s objections flying around, it can be – that part of it is sexy in terms of action in the courtroom. Talking about it here it seems dry, but once you start adding facts into a situation it becomes – every case is different. That’s why attorneys always say it depends, you know, as an answer to any legal question. It depends but it’s true. I mean, every single client is different. Every single case is different. Every set of facts is different.
CLARICE: [inaudible] somebody shouting objection. I just think we should normalize that. Just throw it into daily life, more shouting objection. It makes things more exciting.
MARISA: Did you have a question? Didn’t you say you had someone that wrote a question?
CLARICE: I did. A friend of mine reached out with a question relating to this. Dave wanted to bring up the issue of an attorney representing two individuals and what that relationship would look like. So, you know, the two individuals, the two clients are not part of the group, but they were both involved in one nexus event, major event. And so it would be A and B versus C, but A and B are not a group or an organization.
MARISA: Okay.
CLARICE: So that question came in in relationship. I don’t know if the attorney-client privilege changes at all for that or how common that is.
[0:12:44] MARISA: The attorney-client privilege would not change in that context. If you’ve got A and B that are both your client and they’ve signed an attorney-client agreement and you’ve exchanged communication including advice, the attorney-client privilege would exist. The other issue that would come up, though, is conflict of interest for the attorney because even though right now everyone’s thinking that client A and client B need representation from the same nexus event and there’s no liability between the two of them, that could change.
Once discovery gets going, parties are deposed, for example, you might find out that party A undertook some action against party B that no one thought about in terms of liability, but now you’ve got the, let’s say, defendant coming in as party C and saying, well, they have shared liability. They both contributed to this event, so that should mitigate the defendant’s liability. And in that context how does the lawyer zealously advocate for both of his or her clients if he’s representing party A and party B.
In the context of environmental litigation, this comes up often enough in Rhode Island anyway because the environmental attorney bar is fairly small. We’re a smaller state. Environmental law is such a niche practice to begin with and then you put it into a small state, attorneys constantly have client conflict because this one represented that person and now this person needs representation, but there’s some kind of conflict of interest between those parties. And with Superfund or CERCLA matters that we’ve talked about before, potentially responsible parties might be a list of 100 individuals and corporations and entities with a limited pool of attorneys to represent those potentially responsible parties. So in that context –
CLARICE: Yeah. There’s like four of your guys.
MARISA: Yeah.
CLARICE: There’s really only four.
[0:15:11] MARISA: Yeah. Yeah. In that context it’s not an attorney-client privilege question. It’s a conflict of interest question really and there’s a separate rule on that and what the attorney needs to do to get informed waiver and consent from each of those parties. You know, there’s a whole document that our office requires in that context that you have to explain to the potential client what the risks are associated with co-representation. And then they have to maybe go and visit another attorney so that the attorney can explain the risk. It’s a very convoluted process, so you try to stay away from that as much as possible because it’s just replete with pitfalls, but, again, sometimes, you know, in Rhode Island –
CLARICE: You kind of can’t help it.
MARISA: Yeah. You just have to deal with it. But that’s kind of a separate issue. For the question that you raised four to five minutes ago because I’ve been yammering on for that long, the attorney-client privilege –
CLARICE: It will be five minutes.
MARISA: I know. Attorneys do like to talk. In the question that you raised, dual representation, the attorney-client privilege would still cover both of those parties. That’s the short answer. But there are other elements of that.
CLARICE: [inaudible] look like because if the attorney-client privilege is based on largely giving advice and asking for advice, if party A e-mails – or plaintiff A, I should say, e-mails the joint attorney and says, hey, I need advice about this one piece, would the attorney have to include plaintiff B in that?
MARISA: No. In fact, just because an attorney is representing two parties doesn’t make those two parties a group.
CLARICE: Okay.
MARISA: It’s still an individual client. Does that make sense?
CLARICE: Yeah. I think that’s an important distinction.
MARISA: I’ve found that I’ve asked that question a lot, does that make sense, because I have no idea. Sounds good in my head. I don’t know.
CLARICE: That’s how you know you’re doing a good job. You’re checking in.
MARISA: Great.
CLARICE: If you didn’t care you wouldn’t ask.
MARISA: So much for that five-minute recitation about attorney-client.
CLARICE: Maybe we’ll try a micro episode next week, or we won’t. Who knows.
MARISA: We’ll say we’re going to, but then we’ll just continue on.
[0:17:48] CLARICE: Just keep going. But actually that’s a grace segue. Next week will not be a micro episode. Next week might be an extra long episode given our normal time range. So as a reminder, next week we are going to be airing our episode with Story Walking hosted by Wendy. So I guarantee you that episode will be a little longer. It will have some more structure and be a departure from our normal, so please look out for that. And, also, any questions, comments, things you want us to know, general praise and admiration, we’ll accept it. Check us out at Info@DesautelESQ.com. No. It’s Help@DesautelESQ.com. This is what I was saying. Next week is going to have more structure. And just find us on Instagram. I don’t have to say anything. Instagram is one word.
MARISA: Go to Google. For God’s sakes just go to Google.
CLARICE: Have a good one, guys.
MARISA: Thanks. See ya.
