Lawyers give advice. It’s a big part of the job. Sometimes it’s legal advice and sometimes it’s business advice and sometimes (particularly for lawyers who focus on technology and intellectual property) it’s hard to tell. And that can be a problem. Because the conversations clients have with their lawyers are protected—until they aren’t. The idea that a client can talk freely and confidentially with her lawyer without fear that the conversation will be disclosed is fundamental to the American legal system. Lawyers and lay people alike understand that concept implicitly, and most probably assume that the protection is extremely broad, which in many cases it is.
But that common understanding conceals some very substantial pitfalls. The privilege is broad, but it is not absolute, and when it is lost the resulting inquiry can be highly invasive. Given how important the distinction between privileged and non-privileged communications can be, one might expect it to be well-defined and easy to recognize. But that is not always the case, especially where the lawyer’s work product itself becomes the subject of litigation. If a lawyer is providing advice and working on a document designed for public consumption (like a business plan or a patent application) and that document becomes the subject of a dispute, privilege issues can be particularly challenging.
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