Attorney–client privilege and confidentiality

Federal and state law provide that all communications between a lawyer and his or her client in connection with the lawyer’s providing legal advice are confidential or “privileged.” The Attorney/Client Privilege is a fundamental protection. It allows clients to speak freely with their attorneys and allows attorneys to provide candid advice.

For the attorney/client privilege to apply, neither the lawyer nor the client may discuss or share their communications with any third party, which includes forwarding an electronic version of the attorney’s advice. To do so risks “waiving” the privilege. This means that other parties or the government may be entitled to read and use the advice and related communications adversely in a dispute or at a trial.

If you are an employee of University of Rochester and in communication with the Office of Counsel, you should keep all communications strictly confidential unless you and the attorney with whom you are dealing agree otherwise. Do not share the communications from or with the attorney with non-attorneys unless the attorney says that sharing is all right or it is clear that the material is for public consumption. Failing to keep matters confidential risks waiving the Attorney/Client Privilege.

If you seek legal advice from Office of Counsel keep the request, the response and related material in a separate file marked to show it contains legal advice. If you are using email, keep the emails in a separate email folder. Keep your legal advice files segregated from open files.

Who the client is is important to understand when dealing with issues of attorney/client privilege and confidentiality. The normal expectation when dealing with the Office of Counsel is that there will be confidentiality and the attorney/client privilege will apply. However, it is important to understand that the attorney/client privilege and its related confidentiality ultimately belong to the University itself, not to the individual people who are its administrators, employees or faculty at any time. The client of the Office of Counsel is the University of Rochester as an institution (or an Affiliate of the University of Rochester as an institution, if Counsel is advising the Affiliate). Normally, the University’s interests are expressed by its senior leadership or by other relevant administrators or faculty. If who speaks for the institution becomes an issue, which it rarely does, the ultimate authority of the University is vested in the Board of Trustees and delegated by them to the President, and it is the Board and the President who determine who speaks on behalf of the University.

If you have any questions about this or any other issue concerning your interactions with the Office of Counsel, please ask one of the attorneys.