In an episode of Shark - yes, this is based on a TV show, mea culpa - they wanted to submit to evidence numerous emails where the bad guy said stuff that really obviously made him guilty.
They knew this due to arduously searching through all the printouts of the bad guy’s emails. This meant that they couldn’t see the BCCs because apparently they don’t show up on printed copies of emails.
The defence then went ‘tada!’ and produced their own printout with BCCs visible, including the bad guy’s lawyer. This mean that all that evidence was subject to attorney-client privilege and inadmissable.
(Presumably they could check the print-outs by going to the emails themselves, because otherwise they’re just plain bits of paper with ordinary typing on them, so easy to forge).
That makes it sound as though you can do write about anything bad at all and it’s still subject to attorney-client privilege. You can email a hitman saying ‘meet me under the bridge at 4pm and I’ll give you a million dollars for killing my wife’ and BCC your attorney in and no-one can use that against you.
IANAL but this seems completely incorrect - for one thing,the privilege would nullified by the fact that other people were included in the communication (just as if you were talking to a priest online at McDonalds; the priest might not be able to testify against you, but everyone else in line who heard what you said would be able to testify).
Are you saying that getting the other guy to testify would be enough? In the show they wanted to introduce the emails themselves because otherwise it would have been his word against the bad guy’s.
No, I mean that because some other person than the lawyer got the emails, they could freely introduce them as evidence (with the other person to testify as to their origin, i.e. “Yeah, that’s the email that I got the other day saying ‘I killed the guy, and I’m glad’”).
IIRC, there was at least one case involving one of the tobacco lawsuits where it was discovered that all kinds of damming company communications were being routed through their legal office, to give them a claim a privilege and refuse to produce them in any later court proceedings. This was even though there were no legal questions involved and no action was requested of the legal department beyond sending on the email to other recipients. I believe a court ultimately ruled that such behavior was not sufficient to claim attorney-client privilege.
IANALawyer though, si perhaps a real one could come in with a better answer.
And I have also heard as Andy L notes, the if someone communicates the same information to others that they do to their lawyers, and those others do not have similar legally protected right of confidentiality, that the communication is considered admissible in a court.
Some people have already touched on this. Essentially, something’s not privileged under attorney-client privilege if you tell it to other people. Even if you are talking to your lawyer in a non-private circumstance (on the street, in a room with others), you can lose your privilege.
Aargh, damnit! I’ve only just noticed that in the thread title I typed admissable when I meant inadmissable. Trust me, typing anything correctly on this thing is a challenge.
So, basically, the TV show was wrong? That’s good to know. I mean, it’s a negative point on the part of the TV show, but I’d far rather they were wrong than that murderers could easily plan killings without comeback due to a loophole.
Planned killings are, by and large, a fiction to begin with. The few which are still generally fall under the heading of incompetent. The reason that police can’t solve a large percentage of murder cases is because forensic science isn’t as magically powerful as TV makes it out to be, not because the perpetrator had a well-layed plan that was executed flawlessly.
That’s a bit of a side-issue that I brought up as a logical extension of what Shark claimed was possible. The case in the OP wasn’t about a planned killing, but the bad guy was admitting to forcing the less bad guy to keep his employees working when conditions were unsafe. That is much more likely to actually happen and to happen over email.
In theory cc’ing or bcc’ing your lawyer with all your emails (or memos) are only going to make those that only go to the lawyers and other officers of the corporation privileged. In practice what I have seen happen when insurance companies do this is that court’s are going to uphold the privilege (in California).
The theory is that privileges protect confidences. If there is a relationship wherein all the recipients are obliged to be confidential, then there is a strong case for the privilege being upheld. But if the privilege holder voluntarily discloses the document to someone who does not have a duty of confidence, then the privilege is waived. It will be judged on a case by case basis.
The crime fraud exception is that there is no privilege to plan a crime and include a lawyer in on it. Planning a crime is a waiver of all privilege with respect to those communications that plan a crime. Moreover, it is likely to waive all privilege with that lawyer.