Overview of the Attorney-Client Privilege

The attorney-client privilege preserves the confidentiality of communications between lawyers and their clients. The privilege protects individuals and institutions. Therefore, the communications that Bradley University administration, faculty and staff have in confidence with the Vice President of Legal Affairs and General Counsel, and certain outside counsel, for the purpose of seeking legal advice concerning Bradley University legal matters, are protected from disclosure to opposing parties by the attorney-client privilege. These communications are privileged whether they are oral, written or electronic.

For the attorney-client privilege to exist, the following are required:

1. A communication between the attorney and the client;
2. The communication must be confidential;
3. The client must have sought the advice of the attorney, in his/her capacity as an attorney on the subject of the University’s rights, obligations or liabilities;
4. The purpose of the communication is to secure either an opinion on law or legal services or assistance in some legal proceeding.

Some Practical Tips:

• Keep conversations with your attorney confidential to protect the privilege. If the substance of attorney-client communications is disclosed to persons outside the University – or even to persons within the University who are not directly involved in the matter – the privilege may be extinguished. Your communications with Bradley counsel should never be discussed with anyone outside Bradley, including family members or friends; within the University, they should be discussed only with persons who have responsibility for the particular matter.
• Beware of forwarding email strings and sharing attorney-client privileged communications. As the client, you hold the privilege, but if you voluntarily disclose our communications (e.g., “Our General Counsel told us…”), the privilege is waived. By forwarding an email to a third-party (anyone other than your lawyers and staff with a “need to know”), which contains the University attorney’s advice on a matter, the privilege is waived.
• Consider whether an email to counsel should be marked “Privileged and Confidential” or “Attorney Client Communication – For Purpose of Legal Advice” by the sender. While this marking is not essential to bring the communication within the attorney-client privilege, it can help to protect the communication from compelled disclosure in litigation. Labeling something “privileged” does not, however, make it privileged; it depends on whether the communication is for the purposes of obtaining or receiving legal advice.
• Don’t assume that just copying your lawyer makes an entire communication privileged. Communications between a lawyer and client are only privileged if they relate to legal advice. If legal advice is truly being sought, the email should be to the lawyer as the primary recipient (not just cc). Communications seeking only business advice are not privileged. Merely including someone who has a law degree or is a lawyer will not make the communication privileged. The attorney must be employed by the university and acting as such in the course of the communication.

If you have any questions concerning the attorney-client privilege, please contact the Office of General Counsel at 677-3150.