How to Protect Your Attorney-client Privilege
Whether retaining an attorney for malpractice or criminal defense, for an action to collect unpaid patient fees, or to pursue a potential business venture, your confidential communications with the attorney are generally protected from disclosure in the course of any legal proceeding.
This means neither you nor your attorney can be compelled to testify about what was discussed, even when those discussions include violations of various laws. The attorney-client privilege serves both the immediate needs of the physician and public ends by ensuring sound and fully informed legal advice and advocacy.
The attorney-client privilege protects confidential communications between a physician and his or her attorney, or prospective attorney, made for the primary purpose of obtaining legal advice or assistance. For this privilege to apply, a physician needs to seek advice or assistance from an attorney that pertains to matters within his or her professional competence. In turn, the attorney must agree to give — either implicitly or explicitly — the desired advice or assistance.
Once in place, the attorney-client privilege is a very strong one, but physicians need to be careful to avoid waiving it by sharing information with a third party. Assuming the physician and attorney have used reasonable efforts to protect the information from disclosure, the privilege can remain intact if a third party overhears their conversation without their knowledge, or intercepts an e-mail or fax without their permission.
However, as a general rule, a knowing and voluntary release of privileged information outside the confines of a ‘special relations’ (e.g., with your spouse, clergyperson, or therapist) will waive your privilege. For example, over dinner one night, you tell a friend what your attorney said about expert reviews that did not support you in a malpractice suit. By knowingly and voluntarily releasing this information, you have waived your attorney-client privilege.
While your attorney can still not be compelled to disclose this information, the opposing attorney can legitimately ask you whether you discussed this case with anyone other than your attorney, and what you said to them. By having the outside discussion, you may have to testify at a deposition or in court that you told a friend that you were worried about the case because several respected experts in your field told your lawyer that you had breached the standard of care.
Protecting the attorney-client privilege is essential to defending your case. Privileged information should be carefully guarded, and no matter how good it may feel to vent about an ongoing legal matter, doing so may ultimately undermine your case. –
Attorney William Frank is associate counsel to the Mass. Medical Society. This article first appeared in the “Law and Ethics” column in Vital Signs, an MMS publication.