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Understanding the Limits of the Attorney-Client Privilege Under NY Law

Although it is fairly common knowledge that communications between an attorney and client - or even a potential client - are privileged, or in other words, must remain confidential, what is less commonly known is that there are limits and exceptions to this rule. Once you understand the reason for the rule, however, the limits to the rule follow logically. This article will focus on the limits of the attorney-client privilege.

As a general rule, the Courts favor full disclosure of all relevant and material information in the context of litigation, and the reason for this is fairly obvious: it helps foster the discovery of the truth. That being said, both the federal and state legislatures have long recognized an important countervailing consideration: the ability of a client or potential client to discuss freely their concerns with an attorney. Consequently, all private communications wherein someone seeks advice from a lawyer for their particular legal issue are permanently protected from disclosure. As stated above, there are both limits and exceptions to this rule. Here are some of the most common limits of the rule:

  • Communications Are Protected; Facts Are Not - While the attorney-client privilege protects a "communication" between the lawyer and the client, a client's knowledge of the facts themselves is not immunized from disclosure. Therefore, a witness will be obliged to answer the question, "What happened?," but he may not be forced to answer "What did you tell your lawyer about what happened?"
  • Physical Objects Are Not Privileged - Items belonging to a client, such as the instrumentalities of a crime, are not within the privilege merely because the client turns them over to his lawyer.
  • Communications Made In Front of Other People Are Not Privileged - If the client talks to his lawyer with the knowledge that other people not affiliated with the lawyer's office are present or listening, the communication was not made confidentially, and therefore, is not privileged.