“Legal Briefs” appears in e-Inside to keep faculty and staff informed of legal issues and their implications.
In Ohio, the laws regarding attorney-client privilege ensure that the confidential information disclosed in the attorney-client relationship can remain confidential under certain circumstances. This privilege of confidentiality is held by the client and is intended to encourage full and frank communication between attorneys and their clients.
However, since the privilege of confidentiality is an exception to the general rules of disclosure of information during court proceedings and law, the rules regarding attorney-client confidentiality are narrowly applied by courts. The Ohio Supreme Court provides that the attorney-client privilege arises: (1) where legal advice is sought and provided from a lawyer to a client; (2) the communication is made in confidence by the client and is protected from disclosure by the client and the lawyer; and (3) protection of the confidential information is not waived by the client.
Accordingly, communications between an attorney and client that do not constitute legal advice are not protected communications. Further, if confidential information is not treated as confidential (i.e., information that is intentionally or unintentionally disclosed to third parties), then the attorney-client privilege can be inadvertently waived.
Therefore, merely including an attorney on an email chain does not invoke the attorney-client privilege. When confidential legal advice is sought from the Office of General Counsel, steps must be taken to protect the confidential communications. Emails should include “Privileged & Confidential/Attorney-Client Communication” in the subject line. Additionally, include only necessary university parties on emails and discussions – the inclusion of contractors or other nonuniversity parties that are not directly represented by university counsel can waive the attorney-client privilege.
If you have questions regarding attorney-client privilege or any other legal matters involving the university, please contact the Office of General Counsel at 330-672-2982 or legal@kent.edu.
