By Marc C. Laredo
The attorney-client privilege protects confidential communications — between a client or prospective client and an attorney — made for the primary purpose of obtaining legal advice or assistance. Except in a few limited circumstances, the attorney cannot reveal these confidential communications to a third party or in the course of any legal proceeding. The applicability of the attorney-client privilege is usually fought out in the courtroom. The underlying communications that are the subject of those disputes, however, may occur far earlier, oftentimes before either a cause of action comes into existence or litigation is ever contemplated.
Every lawyer who interacts with businesses, whether in private practice, as in-house counsel or as a government attorney, needs to understand the creation and the scope of the privilege in the business context. This article will provide an overview of Massachusetts law in this area, including a general discussion of the privilege, conflict of laws issues, individuals within the organization who are considered to be part of the client for privilege purposes, practical issues relating to the privilege, the inapplicability of the privilege in certain circumstances and litigation issues involving the privilege.