Telling secrets to your lawyer


The attorney-client privilege (which I’ll refer to here simply as the “Privilege”) applies in every U.S. state. It’s imposed in New Hampshire by the rules of evidence issued by the New Hampshire Supreme Court. These rules provide, among other things, that if any individuals or their representatives send confidential communications to their lawyers for the purpose of seeking legal services or if their lawyers or their lawyers’ representatives send communications to these individuals for this purpose, these individuals can, with certain important exceptions (some of which are discussed below), legally refuse to disclose these communications to other persons. The Privilege applies whether or not the individuals in question are involved in lawsuits.

If you’re a New Hampshire business owner, you are likely at some time in the course of your business to share information with a lawyer that you wouldn’t want anybody but your lawyer to know about. In these situations, your lawyer needs to have a thorough understanding of the Privilege in order to protect this information, but you yourself need to have at least a basic knowledge of it. Here are the basics of what you should know:

 

The fact that you communicate information to your lawyer that is confidential – e.g., information about competitive or employment situations challenges you’re facing and what to do about them – doesn’t mean that information is covered by the Privilege. As indicated above, the Privilege will apply only if its purpose is to seek or receive attorney services. This means that if you think that there’s even the slightest doubt about whether information you provide to your lawyer is for that purpose, you should expressly say so in your communication of the information.

If you communicate information to your lawyer that is covered by the Privilege for the above purpose, you may lose the Privilege if you communicate the information to any other person, including even your siblings or close friends – and sometimes even if they are merely in the same room as your lawyer and yourself when you’re talking with your lawyer.

Even if your purpose in a communication with a lawyer is to seek legal services, the Privilege won’t apply if you seek these services in order to plan or to commit what you know or should know is a crime or fraud. I’m sure no readers of this column are planning or committing crimes or fraud or will ever do so. But you should be aware of the “crime or fraud” exception to the Privilege if you think any third person, might accuse you, however unfairly, of a crime or fraud.

When two or more people are forming a jointly owned business and, as if often the case, they want the same lawyer to represent all of them in the formation, they should be aware that if there is ever a lawsuit among them, the Privilege won’t apply. This means that whatever any of them has told the lawyer, the lawyer must disclose if questioned about it in a deposition or on the stand.

The Privilege won’t apply if you breach a duty you have to your lawyer – e.g., to pay your lawyer’s invoice; or if you charge your lawyer with breach of a duty your lawyer has to you – e.g., your lawyer’s duty of confidentiality about non-privileged information.

If you communicate confidential information to your accountant or another “federal authorized tax practitioner” to obtain federal tax advice – something that many business owners do frequently – that communication will (with some major exceptions) be privileged under Internal Revenue Code section 7525(a), but not in a New Hampshire court. So if you want to address what you sense are highly confidential federal tax matters with your accountant, make sure in advance that doing so won’t trigger a 7525(a) exception. But one way you may be able to protect your communications in a New Hampshire court is to hire a lawyer to handle the matter you’re concerned about and to have your lawyer work with your accountant.

 

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