How to Initiate and Protect Attorney-Client Privilege

The first step is understanding the meaning of the legal principle and its implications.

There are times when the concept of attorney-client privilege is misunderstood or not understood completely, and that’s all it takes to completely undermine the legal principle. A simple understanding of what is and isn’t privileged information can put the client at considerable risk. To guard against accidental disclosure of confidential information, here is what you should know about this legal concept.

What Does Attorney-Client Privilege Mean?

Attorney-client privilege refers to a legal principle that works to keep confidential communications between an attorney and their client private. Like privilege surrounding communications with other professionals, such as that between physician and patient, the principle serves to encourage candid and open communication between the attorney and their client without fear of disclosure. This allows the attorney to know as much as possible about the problem being presented and give their best advice.

The attorney-client privilege only comes into effect when a relationship is established between the attorney and their client. In the private practice context, this is when an individual contacts an attorney’s law firm and asks for legal advice about a particular problem. If the attorney accepts the client’s request for advice, subsequent meetings and conversations are conducted to flesh out the problem and guide the attorney’s advice to the client. These meetings and conversations are privileged and protected from disclosure to others.

The attorney-client relationship can also be established where an employed attorney, known as in-house counsel, is approached and asked for advice on a particular matter of importance to the employee’s company. However, in seeking advice, the employee must understand that the in-house counsel’s client is the company and not its employees. In situations involving personal liability, employees may consider hiring their own attorney for guidance.

What Is and Isn’t Privileged Information?

Regardless of setting, communications are only protected if the client is asking for legal advice. Attorneys receive a variety of emails daily, including communications pertaining to general discussions on business issues. Clients need to make clear that they are seeking legal advice for a particular problem for it to be privileged. Documenting “request for legal advice” is recommended to initiate the privilege.

Once the privilege is established, the attorney may request additional information from the client — for example, a healthcare provider’s billing records. Such underlying information may not be considered confidential and privileged, and turning such information over to the attorney does not make it so. Only the attorney’s feedback, directions, and advice about the documents would be privileged. This should be understood by the client prior to releasing any documents.

Attorneys may also direct a client to investigate or audit for purposes of gathering further information about the problem. Such assignments from the attorney are considered attorney work product. The resulting product falls within the privilege when developed at the attorney’s direction and sent to the attorney for further evaluation of the problem.

When Does Attorney-Client Privilege Not Apply?

While the attorney-client privilege is a robust means of protecting sensitive communications, it is not iron-clad: Exceptions include crime and fraud. If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged.

If, however, the client has completed a crime or fraud and then seeks legal counsel, such communications are privileged, unless the client considers covering up the crime or fraud. This exception is based on the principle that attorneys have a duty to uphold the laws and regulations of the state and federal governments.

The attorney-client privilege may also be waived when confidential, privileged communications are shared with others such as third parties that are not involved in the problem and do not “need to know” the problem and its potential resolution. Employees should use caution when forwarding or sharing emails involving investigations or audits of alleged healthcare fraud, as such behavior can inadvertently waive the protections established by the attorney-client privilege.

How Long Does the Privilege Last?

The timeframe for privilege depends on the complexity of the problem. For example, clients seeking guidance and navigation submitting a voluntary disclosure to the federal government would be protected by the attorney-client privilege until the matter is finally resolved by both parties. The attorney client relationship can also end if the client (person or company) terminates the relationship.

Good Advice

The attorney-client privilege can work to help clients disclose challenging issues without fear of disclosure to others. However, the privilege has boundaries and limits as to what is protected and when. Healthcare professionals, including coding and billing staff, should become acquainted with their organization’s policies and procedures for such communications. Healthcare professionals should also meet and discuss the scope and extent of the attorney-client relationship with their legal counsel proactively to ensure that their communications align.

Disclaimer: This article intends to inform the reader of basic principles regarding attorney-client privilege and is not intended as legal advice. Readers are encouraged to follow up with their legal counsel regarding their communications and processes.

Resources:

www.law.cornell.edu/wex/attorney-client_privilege

www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6

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Julie Chicoine

Julie Chicoine, JD, BSN, CPC, CCE, is the director of compliance, privacy, and risk management for Adventist Health Castle, a non-profit organization located in Kailua, Hawaii, where she oversees day-to-day program operations for the Adventist Health Hawaii campus. Prior to joining Castle, Chicoine served as compliance and policy law specialist for the Qatar Foundation in Doha, Qatar, guiding the development of its foundational compliance program and code of conduct. She also has several years of experience advising academic medical centers, both in private practice and as in-house counsel on matters including compliance, research, employment, risk management, and healthcare reimbursement. In addition to the practice of law, Chicoine is a former registered nurse and has served on AAPC’s Ethics Committee and Legal Advisory Board for many years. Chicoine earned her Juris Doctor degree from the University of Houston Law Center. She also holds a Bachelor of Science and a nursing degree from the University of Texas Health Sciences Center at Houston.

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