Attorney-Client Privilege in Oklahoma

If you’re a client, and you communicate with a lawyer for the purposes of obtaining legal services, the communication is privileged. That means that if you are called to testify in court, they can’t ask you about the communication, and they can’t ask your lawyer about the communication. There are a few exceptions to this privilege, such as if you communicate with a lawyer for the purpose of committing a crime. 

The law on attorney-client confidences has two components: the law of “attorney-client privilege” and the law of “confidentiality.” While the term “attorney-client privilege” is often used to describe both types of laws, there is a difference:

Attorney-client privilege is part of the law of evidence. If a person is asked about an attorney-client communication in a court proceeding, the person does not have to answer. Even if the person would otherwise have to answer the question in other contexts, the court may not compel them to reveal a privileged attorney-client communication.

Confidentiality is part of the law of ethics. If a communication between an attorney and a client is confidential, a lawyer may be disciplined by the bar if the lawyer discloses the communication. If the breach of confidentiality is serious enough, the lawyer may lose his license.

In this post, I will discuss further details of attorney-client privilege law. In my next post, I will discuss confidentiality law. Because this blog concentrates on Oklahoma law, I’ll only describe the laws of attorney-client privilege and confidentiality in Oklahoma. Because each state has its own laws on evidence and legal ethics, every state’s rules on attorney-client privilege is different.

Attorney-client privilege law in Oklahoma

The Oklahoma law on attorney-client privilege is found at Title 12, Section 2502 of the Oklahoma Statutes.

This law says that a communication is privileged if:

·         The communication is made “for the purpose of facilitating the rendition of professional legal services to the client” and

·         The communication is “not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client.”

If the communication is privileged, then:

·         The lawyer can’t be asked about the communication. (However, the privilege belongs to the client, not to the lawyer. So, if the client decides to waive the privilege, the lawyer can be asked about the communication.)

·         The client can’t be asked about the communication

·         A “representative of the client” can’t be asked about the communication. A “representative of the client” is a person who has authority to obtain professional legal services for the client, or a person who make or receives a communication while acting in the scope of employment for the client. For example, the parent of a minor client, or the legal guardian of client, may be able to claim the privilege. If the client is a corporation, an employee of the corporation may be able to claim the privilege.

·         A “representative of an attorney” can’t be asked about the communication. A ‘representative of an attorney” is a person employed by the attorney; for example, a paralegal or a legal secretary. (However, just as with a lawyer, the privilege belongs to the client. If the client waives the privilege, a representative of the attorney may be asked about the communication.)

Attorney-client privilege applies in both criminal and civil cases. Attorney-client privilege applies to all stages of litigation. If someone is testifying on the witness stand, they can’t be asked about privileged communications. If someone is answering questions in a deposition, they can’t be asked about privileged communications. Also, if someone is served with a subpoena, and the subpoena calls for them to disclose privileged communication, the person may ask the judge to quash the subpoena. If a party to a civil suit is served with written interrogatories, the person doesn’t have to disclose privileged communication, even if he would normally have to answer the interrogatories.

Also, under the attorney-client privilege law, an attorney is anyone who the client “reasonably believes” is a lawyer. So, even if a client makes a communication to a non-lawyer (or to the representative of a non-lawyer), the communication may still be privileged if the client reasonably believes that the person is a lawyer.

A court may deem a person to have waived attorney-client privilege if the person discloses the communication to a third party. However, a disclosure may not be a waiver if:

·         The disclosure was not intentional, and

·         The client took “reasonable steps” to prevent disclosure and to correct the error.

If a client discloses privileged information to a government agency, the disclosure does not waive the privilege as to undisclosed communication unless

·         The client intended to waive the privilege, and

·         The disclosed communication contained the same subject matter as undisclosed communication, and

·         A court decides that under “principles of fairness” the disclosed communication should be considered along with the undisclosed communication.

Are all communications with lawyers protected by attorney-client privilege?

No. The communication must be “for the purpose of facilitating the rendition of professional legal services to the client”. A general comment to a lawyer is not privileged.

For example, on my contact form, on which readers of this website may contact me, I specifically state, “Important Notice: Information you submit in this form is not protected by attorney-client privilege.” This has been an issue with many lawyers who use the internet to communicate with potential clients. There have been cases where someone has contacted a lawyer online, and has given detailed information about their case. But it later turned out that the lawyer was already representing the opposing party. This has happened to me, and it has happened to other lawyers. So, if you want to contact me online, you’re probably better off not disclosing information that you want to keep private.

But, if you contact me and I determine that there is no conflict of interest, then I will schedule an appointment with you. If you meet with me one-on-one, then any communication that you have with me is privileged.

Communication with me is still privileged, even if I end up not representing you. A court case in California said that it was “firmly established” that initial consultations are privileged, even if the client does not end up retaining the attorney.

However, the same court case says that if you do decide not to retain me (or if I decide not to represent you) then any communications with me you make after representation is declined, are not privileged. Although this is from a California case, California has attorney-client privilege laws similar to Oklahoma. The California court says that courts of other states “uniformly hold” that communications made to a lawyer after the lawyer declines employment are not privileged.

Also, there is no attorney-client privilege if:

·         The client obtained the attorney’s services to commit a crime or fraud

·         The communication was made by a deceased client, and the communication is relevant to a dispute about who should inherit from the deceased client’s estate

·         The client has accused the attorney of breach of duty, and the communication is relevant to the claim

·         The lawyer has accused the client of breach of duty, and the communication is relevant to the claim

·         The attorney is defending himself against an accusation that the lawyer assisted the client in committing a crime or a fraud, and it is necessary for the lawyer to reveal the communication in order to defend himself

·         The lawyer was a witness to the signing of the document, and the communication is relevant to an issue about the document

·          Two or more of the attorney’s clients are suing each other, and the communication is relevant to the lawsuit

·         The communication was between a government agency and its lawyer. However, a communication between a government agency and its lawyer is still privileged if disclosure would impair the agency’s ability to conduct an investigation or proceeding that is “in the public interest.”

Work Product Privilege

A legal principle closely related to attorney-client privilege is “work product privilege.” Under work product privilege, a court may not compel the production of documents or things prepared “in anticipation of litigation.” A few differences between attorney-client privilege and work product privilege are:

·         Attorney-client privilege only protects communications between a client and the client’s attorneys and the attorneys’ employees. Work product privilege protects documents prepared in anticipation of litigation even if those documents were not communications with attorneys and the attorneys’ employees. Work product privilege protects documents prepared by consultants, expert witnesses, and insurers, and anyone who may be classified as the party’s “representative.”

·         Only a client may claim attorney-client privilege. A lawyer may claim attorney-client privilege only if the client claims it. However, an attorney may claim work product privilege even if the client does not want to claim it.

·         A court may compel production of documents protected by work product privilege if there is a “convincing showing” that the party seeking the documents cannot obtain the same information without “undue hardship.” This is called a “balancing test.” In general, there are no balancing tests in attorney-client privilege; if information is protected by attorney-client privilege, a court may not compel production of the information upon a showing of hardship.

To see statutes and cases on work product privilege, click here, here, here, here, and here.

Contact the Persaud Law Office

At the Persaud Law Office, we take your privacy seriously. We know that, in order for us to provide adequate representation, clients sometimes must disclose sensitive information. All of our staff are trained not to disclose client confidences to anyone. If you have a legal issue, do not hesitate to contact us today.