Think Attorney-Client Privilege Protects Everything? Think Again!

Welcome to the premiere episode of Learn Laws, a podcast dedicated to making the law understandable and actionable for everyone! Hosted by Attorney Andrew David Easler and Entrepreneur James White, this debut installment dives deep into the foundational legal concept of Attorney-Client Privilege, a principle often misunderstood yet critical to navigating today’s world.

In this episode, they tackle the essentials of Attorney-Client Privilege: what it is, what it protects, and—crucially—what it doesn’t. You’ll learn that it’s all about confidential communication between a client and their attorney, designed to ensure honest, open dialogue for effective legal representation. But it’s not a catch-all shield—documents, physical items, or emails carelessly shared with third parties fall outside its protection. Andrew clarifies the nuances, explaining how privilege only applies when you’re seeking legal advice and taking reasonable steps to keep it private, like avoiding loud restaurant chats or CC’ing your mom on sensitive emails.

The conversation gets even more compelling with real-world twists. Ever heard of the crime-fraud exception? James and Andrew unpack how privilege vanishes if you plot a crime or fraud—like asking your lawyer how to scam someone. They explore edge cases too: what happens after death (spoiler: it often holds!), how interpreters or third-party payers fit in, and why being honest with your attorney is non-negotiable for the best outcomes. Drawing from their own journey—building businesses and facing legal gaps that led Andrew to law school—they make these concepts relatable for entrepreneurs and anyone curious about their rights.

Expect no-nonsense insights laced with aha moments. Why does this matter? In a litigious society, knowing what’s protected can save you from costly missteps—whether you’re launching a startup, signing a lease, or just dealing with life’s curveballs. James and Andrew don’t just explain the law, they show how it intersects with everyday decisions, from business deals to personal disputes. This isn’t about jargon or ivory-tower lectures, it’s law stripped down to what you need to know.

Transcript

0:14

- Welcome to Learn Laws when Knowledge is Power. Now, legal advice just for education. Need real counsel? Don't roll the dice. Always speak with the license. Discern,- Welcome to the show, Andrew. How are you? I'm doing good. How are you? Good. I'm finally excited. We've spent, I think, four months getting this studio prepared. So for anybody at home that doesn't know how a studio works, this is a very interesting learning experience and we try to find somebody to help us locally, but they just didn't have what we needed. So what we did is we did it ourselves. We learned, and I think that's the most important takeaway from everything that we do here, is in order to survive in like this new world that we're in, you have to start learning how to do things yourself.- Yeah. - Because things are going getting very expensive with the economy and the inflationary aspects of it. So I'm very proud of us that we did this. So this is our first show. I'm very excited for it.- Yeah. So as even if you, even if you're hiring somebody to help you out, it's really important to even just know how to do it on your own.- Correct. And this is why we're here today, actually. So, a little backstory that I would like everybody to know about how you became you. I mean, you might want to kind of interject a little bit, but, you know, I met Andrew about, I wanna say what, 15 years ago now? 15, close to 15 years ago. Over 15 now, over 15 years ago. And we've been business partners in many different aspects from like a live scan business to, you know, real estate business, to real estate development business, to an education, online education, business work training.com, which we still have today. And it's doing very well. And we as an entrepreneur, you know, we always needed legal advice and we could never find one that we felt was good for us. So I think the conversation we had one night was, Hey, you know, I'm just gonna go to law school myself. Yeah. And I think that's what makes an entrepreneur successful, is if you, you gotta find a way to get it done. Right. So I'm very happy to have this happening. And so this brings me to my first topic that I really wanted to discuss with you, because, you know, as an entrepreneur, I grew up in Canada and it's much different over there, but here, obviously it's very litigious and, and so forth. And I, I, as an entrepreneur, it was really hard for me to understand different legal concepts and theories. And this is why we decided to start learn laws so we can help people who listen to us and follow us, actually take these legal concepts and theories and actually understand them fully. Therefore, they can apply this to their everyday life as an entrepreneur, as, as a just a, a person, you know, working a nine to five job that needs, you know, to understand different things. So I thought our first topic should be attorney-client privilege, because I think it starts with attorney-client privilege, right? Right. Whether you're going into a law office to discuss anything you want. So I thought that would be a really good starting point for our podcast so people can follow along over time, and then they can become, you know, well-versed in different concepts, theories and, you know, hot topics that we're gonna discuss. So I guess that brings me to my first question, Andrew. Yeah, sure. You know, what is, what is attorney-client privilege? What does that even mean?- Yeah. So I think it's really important that we started with this idea that the United States system is pretty unique. Okay. Yes. We've borrowed a lot of our, our laws from England, Louisiana borrowed some of their laws from the French legal system. But by and large, we've kind of invented a lot of different ways that we approached the law. And one of them is our adversarial system. And it basically means that you are going to be going up against and arguing against somebody else who disagrees with you legally or factually or both. And because we have this adversarial system, one of the most crucial components of that is being able to be honest with your legal counselor about what happened, what you did, what the facts are, and, and anything else that you feel comfortable that you need to disclose that's gonna be relevant to that legal counselor providing you good legal representation, whether that's through litigation or through doing estate plan or asset protection or structuring. You need to be able to disclose what you own, what you've done, what you've, what you did open, and what you plan, plan on doing, all of these kinds of things without concern that somehow someone in the future that's gonna be on that adversarial side of the table is gonna be able to go out and grab that. So that's what attorney client privilege was meant for. What it really means is when you go to approach that legal counselor of yours, you are able to communicate whatever information you need to communicate in order to get that legal representation. So first and foremost, lesson for everybody, attorney client privilege will only apply to communication. Right? So documents that you're providing is not covered under attorney client privilege. Oh, wow.- Really?- Yeah. It's just communication. So you can communicate and say, Hey, I'm looking for representation. Can you give me some legal advice? And the second component of that is that it has to be confidential. Right? You can't just be doing this out in the middle of the park or on a podcast. Yes. Right? Yeah. Where everyone's gonna hear, you have to make, take reasonable steps to make it confidential. And then you have this presumption, as long as you're seeking legal advice, the information and the communication that you're having is attempted to be confidential, then it should be covered by attorney client privilege. Now, there's some exceptions. Oh,- Wow. Okay. Let's, good to see. And this is why I think this show is so good. I don't mean to interrupt you. Yeah. But I think this, this is why this is so important, because, you know, as an entrepreneur myself, right? I didn't know this stuff until I met you and you went through law school and you started teaching me all these different things, and I'm like, wow. I jo I thought attorney-client privilege covered everything, my emails, I was sending them the documents, the everything I did, I thought it was all covered by attorney client privilege. And then obviously, you know, telling you my stories from the, from, you know, the past, you're like, Hey, James, you know, that wasn't covered. Or, Hey, you should have done this, or should have done that. So, you know, it's very, very interesting. So, sorry, I didn't mean to interrupt you. Go ahead.- Sorry. No, no. Yeah. So, I mean, it's important for everyone to kind of get an idea. I'm gonna throw a lot of information all at once, so feel free to interrupt me if you feel like I should clarify some things. So let's talk a little bit about communication and why it really only applies to communication. Let's say you go to your criminal defense attorney and say, Hey, I killed somebody and I'm gonna be charged, right?- Yeah. - How, how, how, how do we set up my defense? Right? You're gonna be revealing all of the intimate details of what happened, what you did, what you didn't do. And you may even have the murder weapon on you. If you hand that murder weapon to your attorney, do you think your attorney will be obliged to hold it and keep it from law enforcement?- I, I, that's a very interesting one because on one hand, right, you're providing your, your hope that's covered by attorney-client privilege. But on the other hand, it's a murder weapon. And so my first instinct would be the attorney would have to hand it over only because what you said earlier was it doesn't cover documents, right. Only communication. So- Just communication.- So if it's like a physical item or a document that would not be protected, and therefore it could be confiscated essentially, or taken by the police or an authority or whoever is requesting that, that that document or that, you know, physical item or whatever it is.- Yeah. So we have the very interesting, the crime fraud exception Yes. To attorney-client privilege in action right- There. Perfect.- But we also have the concept because it never even fit within the definition of attorney-client privilege, because it wasn't a communication, it was the exchange of an item.- Okay. So crime fraud. So you mentioned crime fraud.- So - Can you elaborate on that a little bit, just so everybody understands what that means?- Right. So first let's recap, right? Yeah. So we've got attorney client privilege, which is a protection that's afforded to you as the client, right? It's your, your right. Yeah. To be able to voluntarily waive that privilege or keep it in place, right? It can't be the attorney that just says, oh yeah, we're gonna waive the privilege. It's gotta be directly from the client. Second, it's gotta be communication. And that communication has to be in seeking legal advice on a particular matter. Now. So if we've met those specific prongs, the question is, is that communication exempt from the privilege? Well, what do we really care for on the public policy side of things that we wouldn't want attorney privilege, we wouldn't want somebody to just to have their communications disclosed to, to third parties, of course.- Right? Yeah.- It's when somebody else is really in danger, right? That's the general rule across the United States. Now, what imminence, what level of imminence and what level of danger really varies from jurisdiction to jurisdiction, because this is a common law concept, right? Yeah. This, this is a derived from the common law, which is a whole bunch of judges over time interpreting and reinterpreting what other judges have said about what the law should be based on fact patterns as they change over time.- Interesting. Well, it's very, very interesting. So if, so for example, if, you know, if you have a, a client, right? And that client commits murder and they call, or they're committing about to commit a murder, and they call you and say, I'm gonna murder this person, you have an obligation to call the con or contact the authorities and say, Hey, this person is about to commit a crime, or they told me they're about to commit a crime. So you have to go help them because obviously you, it doesn't apply if you're committing a crime. That's the crime.- Yeah. So this is a really important distinction Yeah. That we have to make, right? Yeah. It's very interesting. So if you come to me and say, I have committed a- Crime. Yeah.- Then as long as it meets all the other elements of for attorney client privilege that we've taken reasonable steps to be confidential, you're seeking legal advice, then I have to keep that, that information confidential and privileged. Wow. But if you come to me and say, I am going to kill again, and my next victim is ex, then I have an obligation as an attorney to prevent that imminent harm or imminent danger to that person.- Or if it's fraudulent as well, that's by the crime fraud. So if like, if they come to say, I'm going to do this to fraud somebody, then a, you couldn't represent them first, and secondly, you'd have to report that if it's actually a crime in progress.- Right? Well, some states treat that the, the fraudulent situation a little bit differently. Right. It's whether or not there's financial harm, and it sometimes leaves that discretion to disclose to the authorities up to the attorney. Now, that also invokes another rule that all of us lawyers are bound by, which is we cannot allow our services to be utilized in furtherance of a crime. So you can't go to your attorney and say, Hey, I want to defraud this old folks home. Yeah. Can you tell me how to do it? Or tell me how to avoid getting caught. Right. That is the, the fraud exception to attorney client privilege. But it's also one of our ethical duties that we can't even participate in that, in that kind of activity. Of course. I mean, that makes, they can allow our services to be utilized that way.- Oh, okay. So if, so if you were to find out a, you'd have to like terminate the client, I would assume. Like how would that work? If so, if they are already, so let's say they're, they may be a new client, or they're an existing client, they tell you what their plan, their intentions are, right? Their intent.- Yeah.- Obviously if they're a current client, you would have to, how would that work? And if they were, if obviously if they're a new client, you wouldn't have to retain them.'cause you're like, this person is, you know, about to kill somebody and I don't wanna represent them, first of all. And secondly, you know, we have to report this. But if they're already a current client, how does that affect that attorney-client relationship?- Yeah, so there's other rules for existing clients, right? So the, for example, the Florida bar says that we can't withdraw our representation if it's going to cause harm to the client. There are some exceptions, and there's kind of a reasonableness standard with that. And if there's ongoing litigation, we actually have to get permission from the judge to withdraw unless the client voluntarily allows us to go or decides to substitute as counsel. So if we already have an existing relationship, the client comes to me and says, Hey, I want you to tell me how to commit this fraud.- Yeah. - My obligation is to say, I'm not gonna do that, that's criminal. And if they insist, then that would be the end of my relationship. Now, another attorney might just say, no, and no and no, and then continue representing them on whatever other matter it is. So that's more of a,- A personal,- A personal kind of- Ethical. Okay. So that's like a firm decision. Okay. Perfect. So, so attorney client privilege covers spoken words. So if you're on the phone with you Yeah. As long as it's not a crime fraud issue- Yeah. Let's talk about just the phone situation Okay. In, in the first place because Okay, perfect. I I, there's a couple nuances Okay. That come into play. Perfect. Right?- Okay.- If I'm on the phone with just you and I'm the attorney, my first question to you is, can anybody else hear our conversation? Right? Correct. Because the communication has to be confidential. What does confidential mean? Well, we've taken reasonable steps to make sure that no third party who's not necessary for the rendering of legal advice can be present or can hear us. Now if by some extreme example, they do hear us- Yeah.- Then privilege won't be waived because we've done our, our due diligence to do our best to make sure nobody's listening. So if the FBI has tapped our phone Yeah. Unbeknownst to us. Yeah. It's not like privilege is gonna go away Right. In, in that kind of scenario. But if you are in the middle of a, of a restaurant and you are at the table with three of your friends and you're just casually discussing legal advice while they can all hear- Yeah.- Then there's gonna, you're waiving that volunt voluntarily.- So if you, like you just said you're at a restaurant or you're at a public place, you're talking with your attorney, you're telling them all your dirty details and somebody overhears them, that wouldn't be covered because it's a public place. You haven't taken good faith efforts or good efforts to reasonable steps, reasonable steps to assure ensure that that conversation is private.- Right? Yeah. And in fact, in in DC it's very common to have VIP areas where attorneys meet with their clients Yeah. In New York City as well. And so that they can have these kinds of conversations in a more relaxed setting outside of the office and still maintain that privilege.- So that's very interesting. So that's why restaurants charge you $200 for a plate of dinner because it's more private. Like you go to the VIP booths. Right. That's where- Yeah. I mean, it mean it's a secondary That's very- Interesting benefit. Yes. Let's say. Correct. Yeah. That's actually a very, actually, that, that's a very good, great business. If you think about it, you start up a restaurant, you have private booths in a professional corporate area, and then people can bring their clients in for, for dinner or lunch or breakfast or whatever, and they're, and you can have like a little boost there that are, it's more confidential. Right. So that makes, that makes a lot of sense. Okay. So we have this spoken written, same thing, right? So what kind of written communications are protected, obviously emails from and to the- Attorney. Yeah. So emails are, are a little bit tricky,- Right?- They're tricky. It's very easy to waive your privilege through an email. Can you guess how,- Well, only because I've worked with you for so long. I know, but I will let you explain it. I only assume I, you know, again, if I'm CCing somebody on that CCing carbon copy, carbon copying, CCing or BCCing somebody, and they have no relation to the case, like, I'm sending you an email and I cc my mother on that, but she has nothing to do with the case, and I've essentially may have broken that attorney-client privilege.- Yeah. Am I correct? Yeah. Because again, the, the main rule that we have to follow is that we've taken reasonable steps to make sure that this communication is confidential. And if you are just adding a third party who's not necessary to the rendering of my legal advice- Yeah.- To that communication. Now you've added this third party and that breaks your privilege immediately.- So the lesson is, if you're going to communicate with your attorney through email or text or anything written, make sure nobody else is privy to that conversation unless they're part of the case. Correct.- Yeah. Part of the case being meaning somebody else that's also represented in the same exact matter. Right? Okay. So there's a joint representation agreement in place, or it could be support staff, right? You can have, you can speak to the attorney and their legal assistant and copy their legal assistant on there. Be, because it's still within case that representation.- Okay. Got you. So if you're typing a letter or an email or a text message to an attorney anywhere really in the United States, or I would assume worldwide, but let's just focus on the United States and Florida. I write you an email, I cc my mother who's not part of the case. She's not a legal assistant, she doesn't work for the law firm. I basically waive that privilege for that specific communication.- Yeah. I mean, of course that communication still also has to be seeking legal advice, right? If you're just sending an email out to an attorney to tell them that you murdered somebody, but not ask any questions or ask for any legal advice. Oh wow. That's, then there's no- Privilege either. That's, that's really interesting because if you think about it, how many web forms do attorneys have and how many even just, you know, working in the law firm, how many people send in emails we don't even represent, they just tell you they spill the beans, right?- Yeah. I mean, there's lots of people that spill the beans. Yeah. Right. Be careful on spilling the beans unless you, unless it's very clear that you're from your message or your, your communication that your, that message that you're sending spilling those beans is designed for you to be able to get legal advice.- And that, that, that explains why on a lot of these websites and whatnot, at the, when you submit the, the form that they have, it says, we are not, this is not an attorney-client privilege. So when people see that we are not, this is not attorney-client privilege or protected communications, you shouldn't submit something in that web form if it has to do with any kind of case, you know, case information, right? Yeah. You should that attorney, you know, book, book a consultation and say, Hey, I'm I protected by attorney client privilege, and this is, I think super important that I learned from you is always ask, is this protected by attorney-client privilege, or is this conversation about to be protected by attorney-client privilege? And that's where the attorney can then say to you, okay, well this will be protected, but just, you know, this will not be protected. So that way you are aware of, or a client or whoever is aware that what they're saying is protected and not protected. So whenever in doubt, always ask, right?- Yeah, a hundred percent. And, you know, there's some, some areas of of practice where, you know, that question is, is hard to answer, right? Let's say your native language is French, right? And you, you speak basic English and your attorney only speaks English. Right? If you want to explain to me what occurred in order for me to give you legal advice and your main language is French, but you, you know, maybe you understand a little bit of English Yeah. But you could really use the help of an interpreter, right? Is that interpreter necessary to be present in this meeting for you to be able to receive proficient and competent legal advice to make sure there's no loss in- Translation? That's a good question. That's a very,- 'cause if they're necessary then it doesn't break privilege. But if you are proficient enough in English to receive the same legal advice, then maybe they're not necessary. So these can be tough questions. And you know, this has to be a discussion that you have with your attorney before you start spilling any beans.- Of course. And this is why I thought this show would be so important. Our first episode was because it's so nuanced, right?- Yeah. - And even when, even when I was younger, you know, dealing with failures or successes or any kind of like business interaction with, and working with attorneys for a variety of different reasons, you know, I never knew this and no attorney ever explained it to me. And so I thought any, every entrepreneur, even me, now I'm learning stuff, right? But every entrepreneur should know the basics of attorney-client privilege. And I think that whether you're, again, whether you're an entrepreneur, I'm an entrepreneur, so I, I assume that, you know, I'm appealing to other entrepreneurs, but whether you're anybody, you should know exactly what attorney client privilege.'cause that could really dramatically out, you know, affect the outcome of your case. Right. So question for you, what limits apply? Like, so we've already talked about the crime fraud issue. What about after death? Like, is attorney-client privilege protected after death? Because, you know, growing, you know, again, I don't know the the total circumstances, but you know, you go on TV and you watch these pundits and they start talking about somebody that just passed away. They start like throwing them down the road, right? Like throwing 'em off a cliff saying, oh, this person did this, this person did this. And I've seen other attorneys on tv, which I'm assuming maybe they were not clients of that attorney, they were more just talking heads. They started spilling the beans on some of the stuff too. So when does it, when does, does it ever end even after- Death? Yeah, that's a, that's a really great question. So by default, if you die, those secrets die with you. Okay. Okay. So that's the, the general rule is if you've come to your attorney for legal advice and that communication that you've provided to them is covered by attorney client privilege, just because you die, it does not mean that privilege somehow evaporates. Oh, wow. So it- Does extend beyond death.- It does extend beyond death.- So question for you then, if I die and I've told you I spilled my beans to you and somebody finds out that, you know, whatever happened, right? And I'm obviously that would my estate then have to, like, how does that, how is that enforced? What's the enforcement mechanism for that, if there is one?- Yeah, so usually it would be the administrator of the estate in state of Florida. We call them not executor or execut tricks, we call them personal representative. Yeah. But it's the same, same, same person, same role. They're in charge of, you know, making any claims against people who vi violate the value of the estate or Oh wow. Or somehow injure or provide you any kind of tort. Now that being said, in the state of Florida, we've kind of softened up a little bit about this harsh hard line rule of turning client privilege, just going on and on and on forever.- Of course,- We have a, a small exception that basically says, as long as your, your client hasn't explicitly told you, keep my information Yeah. Secret, keep it safe, right?- Yeah.- And they've passed away and let's say a long lost relative or you know, a stepdaughter comes and says, I'm gonna make a claim to the estate. Maybe not a stepdaughter, probably not the best example, maybe a daughter that, that you haven't spoken with for 40 years. Yeah. Okay.- Yeah.- Comes and says, I need to make a claim to the estate, you know, there's a trust that's in there and I want a copy of the trust, I want a copy of the will, I wanna see if I'm in there. Okay. Otherwise, I'm gonna sue. Okay. In that situation, it is up to the attorney and their trustee or the, the person representative to make a decision about whether or not it's in the best interest of the estate. Yeah. To disclose, to just show that daughter, listen, he knew about you, he didn't forget about you, but unfortunately you weren't in the will. Right. Okay. Gotcha. And here's the will. It was properly executed, here's the trust, it was properly executed, or, you know, whatever information to the extent that it's going to resolve that potential claim without litigation to save money for the estate that's in the best interest of the client, which is the estate, the deceased person's total property, then they do allow us, but it's, it's new and there's not been a lot of tests on it. And so most attorneys are not willing to test the waters on it at this point. But we are, we are kind of approaching a little bit of softening. That's very- Interesting on, so attorney-client privilege never really ends for that specific matter.- Yeah. It, it, it, it doesn't, unless there's some kind of exception that falls into place. Or maybe the, the client has told you, Hey, I'm okay with you giving my will out to my daughter. Right. And, and at our firm, we, we do that. We have a, as part of our, our estate plans. Yeah. We just say, Hey, who gimme a list of people after you die that you want me to be open and, and provide a copy of the will to,- So off the top of your mind, what, is there like any real world examples that where attorney client privilege applied? Like the first thing that comes to my mind from a criminal perspective is like maybe OJ Simpson, right? That was a big case in the nineties, right? I think attorney-client privilege played a big role in that case. I can only assume. Right. Do you know of any other cases? Maybe it's like a business sl civil litigation where maybe that attorney-client privileged really helped the case. So- Of course the whole point is if attorney client privilege was successful- In- Its goal, then we would never know.- There you go.- Right? Okay. And that, and that kind of becomes, becomes the rule. You can't know whether it was successful or not, if you don't know what actually occurred and- Ah, makes even after- People pass- Away. That makes a lot of sense.- Yeah. But yeah, I mean OJ is probably a really good example, right. I'm sure that his attorneys were, were well aware of some of the things that he wrote about in his book- Yeah.- While during the representation- Of course. Yeah, of course. So we've already talked about the con what are the consequences of breaking it for both? We've already sort of touched on the client aspect, right? Right. Of the consequences. But can we elaborate on the consequences if like, I'm your client and I was, and I broke attorney-client privilege a without you knowing. And then the secondly, secondly, the attorney-client privilege for you, if you break it right, which is obviously we, there's obviously a lot of legal repercussions there, but you know, what would happen to the person if they have a case? Obviously it could disrupt their case, we know that. But there might be other issues that we, that need to, we need to discuss. And then what happens to when an attorney or if an attorney does that,- Okay, yeah, let's talk about that. So let's say you're in the middle of civil litigation and you and I have a conversation, and in that communication where you're trying to get legal advice on this particular strategy, you disclose some bad information Yeah. Things that make you look bad or maybe, maybe would make you lose the case. That communication by default is we're gonna assume is gonna be covered by attorney-client privilege. You turn around and have a phone conversation with your mother, she says, James, what's wrong? You're acting different. You're acting weird. Something you wanna tell me and you break down and you tell her mom, well the problem is, I, you know, I did something bad and I think I'm gonna lose this case. She says, what's, what did you do bad? And you tell her, well, even though it wasn't, even though our conversation Yeah. Between attorney and client was covered by attorney-client privilege, that information was now made public. It was now divulged to a third party who does not have their own privilege. Oh, right. Wow. Of course we have attorney-client privilege. Yeah. But we also have doctor patient privilege, and then we also have religious appropriate privileges, you know, Catholics, you know, going to get absolved of their sins and confession.- So I I guess we could sum it up. It's, it's very similar to like a doctor patient confidentiality. Right. Where you could tell your doctor, you know, certain things about your health and you're, you're, you know, they're expected not to tell other people about- That problem. Right. Because, because if they feel like they can't tell you, then they're not gonna be comfortable enough to give you the full picture. And if you don't have the full picture, whether you're an attorney, whether you're a doctor Yeah. Whether you're a psychologist- Yeah.- Or maybe whether you're a priest.- Yeah.- Right. You're never gonna be able to, to do what's in their best interest, which is your job- To represent them properly. Right, right. And, and follow your code of ethics. So, so I guess the key takeaway here for me would be if you're going to hire an attorney, right? I always ask them, a, is this conversation protected by attorney-client privilege? And they could let you know if it is or if it's not. And maybe under help you understand why it is and why it's not.- Right.- But the second thing is always be honest with your, an attorney. Right. Because if they're trying to represent you and you can't be ashamed, the reason why you're at the attorney if, especially when it comes like to criminal or civil litigation or something, is there might be some, some issues that came up over time. So I, I think the key takeaway is to be honest with your attorney no matter what, even if it's embarrassing, right. Because they're going to keep your, your information confidential. That's why they're in the business of being an attorney. They understand how sensitive some of these things are. So I, I think that's the key takeaway for me, is always be honest with your, an attorney because then they can help you achieve the best outcomes. And even sometimes you have two bad outcomes, you know, an attorney can help you get the best of the bad outcome, if that makes sense.- Yeah. So I think the key point here is do not let your ego get in the way of successful case.- Of course. Yeah, of course. Because if you, if you have an ego, you're not gonna, you're not going to tell your attorney everything that they need to know to, to give you the best outcomes. Right. Like I was saying earlier, you know, you may have a bad outcome, but hopefully an attorney can either negotiate for you or help you represent you and help you achieve the best of the bad outcomes. Right.- Right. Well, the other thing is, you know, sometimes people think that there's a bad piece of information that's gonna kill their case when in reality it might actually be the thing that wins their case.- Correct.- Right. You don't know, I mean, you're hiring the attorney because you are not the, the legal professional, you're not the expert in the law. And sometimes our understanding of what the law should be does not with what the actual law on paper is. Correct.- Right. So just because it, just because it seems so, just because it's legal doesn't mean it's Right. And just because it's right doesn't mean it's legal.- Yeah, absolutely. Analogy and the reflexive it, just because it's you morally wrong doesn't mean that it's necessarily illegal. Also.- That's really, that, that's really, really interesting. So we, we figured out why it matters, what it is, why it matters, what's covered, what's not covered. What other, what other information can you provide people? So they have a, like is there another example we can provide or- Yeah. I wanna use case, I'd rather talk about one of the things that you brought up earlier that we hadn't had a chance to discuss, which is what happens if your attorney breaches privilege?- Oh, inadvertently, yes. I forgot. Yes. What happens? Yes. Okay. Inadvertently, so they're not, they're not, their intent is not to breach it, but they accidentally by various means, you know, breach it.- Right. So right now, I'm pretty sure every state has a specific law in their, under the federal rules as well, that basically says if you inadvertently, for example, send an email to the wrong person, or worst case scenario, opposing counsel with privileged information or priv privileged communication, you can immediately, as soon as you discover it, send a, send an email saying, whoops, I made a mistake. Yeah. Sometimes there's specific verbiage that the attorney has to utilize. You tell them to destroy the information, don't look at it, pull it back, do what you have to do, and then it won't waive privilege. However, I can pretty much tell you in practice, 99% of attorneys who get that as opposing counsel are gonna open that document and- See, and they're gonna see it and they're gonna use it to their fullest staff. A- Hundred- Percent. It is their duty to represent their client in their best capacity.- Yeah. Well that's, that's another important distinction that that does vary a little bit across jurisdictions. So we have a requirement, what we call zealous advocacy. Yeah. Which is something that's pretty big in the United States, not so much in a lot of other jurisdictions, but, you know, the, the duty and, and how far you have to go and what steps you have to take and where, where in the gray area of ethics you have to, to go into in order to meet that ethical obligation. It depends, it varies from jurisdiction to jurisdiction.- That's very interesting. I mean, there's lots of stuff to understand about attorney-client privilege, and I think this is why this show is so important to kick off our podcast, because again, it gives people, it provides people a good base of knowledge, information. So I guess the key takeaways are always be open and honest with your attorney.- Well un unless you, you're, you're planning on doing harm to other people. Correct. The crime- Fought- The crime, or somebody's in danger. Right. You, you're, you gotta a girl kidnapped in your basement. If you tell me that I'm gonna have to go call the- Authorities, of course. And we'd expect that. I think most people would be okay with that. So again, when in doubt, ask your attorney, is this covered by attorney-client privilege? Make sure you're not committing a crime in progress if you are get, you know, there's mental help out there to, you know, to help people obviously. And, and third most importantly is keep everything private as private and discreet as possible. Meaning don't cc or b ccc carbon copy people on emails that aren't relevant to the case.- Yeah. And, and be honest with your attorney.- Yeah.- Please- Don't lie to us. Yeah.- Right.- It's, it is really tough. Yeah.- It's really tough. Even if we want to continue representing you after discovering the law, the lie, there's always gonna be a rift- Yeah. Sense- That creates rift between your attorney. Yeah. Lot sense between you and your attorney. So it's very important that you trust your attorney, that you're honest with them, and then they will honestly and work hard for you in return.- That's really good information. So I, I think that's, I think that kind of covers it, right? I think we're, this, this is kind of a wrap of our first show and I would, I've always wanted to use this on the sound pad here. One second.- You, you've turned off the- Oh, I turned it off, right? Oh, oh my fault. Sorry. There you go. The show, the show. We're gonna wind it down now. Thanks everybody. And make sure you follow, like, subscribe and share and if you have any feedback, again, this is our first show, so I'm sure there's going to be some issues there. Give us feedback. I know my microphone, I need to replace it,- I think. Yeah. Well listen, there's always gonna be something, but the show must go on. The- Show must go on. So again,- Now before we go,- Yes. Okay, there we go.- Okay. I wanna, I want our, our listeners to really let what, what we've said sink in. And before you write the comment, think about the comment you're about to write and make sure there's no information in there that you wouldn't want opposing counsel to have.- Correct. This is public information and again, we are not a law firm and we are not providing attorney advice or any kind of representation. This is informational only. Gotcha. You So yeah.- Learn wise, and you can ask us questions in the comments, but, but do not disclose any information that you don't want anybody else to find out.- Correct. And that's a big deal. So again, no, we don't put questions or don't ask questions that you are pertaining to a specific case or something like that because it will be exposed. And we are not attorneys, we're not providing legal advice. This, this stuff is for educational and informational purposes only.- Well, I'm an attorney,- Yes. Andrew's an attorney, but I'm not attorney. We're not your attorney. You're not attorney. We're not your attorney. There you go. There- You go.- Okay. Perfect. Oh, another question I have actually, I know we gotta wrap this up.- Sure.- Is there any kind of gray areas, I know we've mentioned a few things. So what kind of gray areas do you think people assume that are covered that aren't covered? Or can you mention any kinda gray areas of you you've experienced in your career?- Yeah, so the, the gray areas with attorney client privilege end up being obviously the hardest ones are, are interpreters. Yeah. Right. Do they have to be present? Are they present here? Are they, are we willing to take the risk for the benefit of being able to give that adequate communication in their native language? The other thing is, in addition to interpreters, there are people who have serious mental illness and we're asking them to recount traumatic experiences that have happened to them in the past. And the other question is, well, if this person can better explain the story and get through a sentence when they have their daughter or their trusted friend or somebody else present.- Yeah.- Right. Is the value of being able to get that story across in an accurate and honest fashion worth the potential risk of potentially waiving that privilege by having this third party present. Right.- Gotcha. - And now, okay, you know, my question for me as the attorney is gonna be, well, am I going to be able to justify this to a judge, right. Am I gonna be able to justify protecting this communication from disclosure and discovery if that's, if it came to that Right. That makes less sense. So that's more of a gray area.- Yeah.- And that's why asking your attorney that question, is this gonna be covered by attorney-client privilege from the outset is so important because then it, at least if they hadn't been thinking about it, maybe they will start thinking about it and bring up and start going through the analysis that we're going through saying, is this person necessary to be here? Is this communication specifically for seeking legal advice? Have we done what we need to do to prevent other parties from, from hearing? Right.- Correct. - You know, don't lie to your, your attorney and say, oh yeah, it's just me here and you've got your, your wife, your brother, your your cousin in the- Same room. And also I think, you know, again, going, going further, I think it also takes away a lot of the drama because if you start realizing this person or this individual can't be involved in my case, so I can't tell them anything, it kind of takes that drama out of the situation so you can focus on actually achieving a good outcome for yourself.- Yeah. You know, it it, it, there's some other, when you're talking about gray areas like that, you know, we have situations where, you know, maybe mom's on a fixed income Yeah. And, and you know, son is, is paying for legal advice.- Yeah.- Right. And he brings mom to the attorney and says, Hey mom, I, you know, go ahead and get your estate planning done. I'll pay for everything. And then he wants to sit in on the consultation, he wants to, to advocate or, you know, discuss or control who the beneficiaries are.- Yeah.- And, and obviously there becomes a conflict, right? There's special rules in place. We have what's called a third party payor waiver so that that third party who is paying for, for the client as and their services, they know that they can't control the, the scope of the representation or the direction we're- Going. That makes sense because that, that was gonna be my next question now, right? Is if somebody else pays for that retainer or pays for that attorney, are they entitled to that? But they're not, obviously- They're not. It's whoever our client is that, that we take our direction from, not from whoever's paying the bills.- So if the client calls a law firm, say you're a, a client of whoever lawyer, x, y, Z lawyer and somebody else has paid your retainer for you, they don't have the legal right to call that attorney and say, I paid you, it's my information. Right. Correct. That,- That's the general rule. Of course, if you have, you know, you know legal guardianship of Yeah. Of course. Of the client and they're, you're, you have the power of attorney over them, then okay. Maybe they, they might have more power and control over the scope of representation.- That's very interesting. That's very interesting. So a quick recap, always ask your attorney if you're in doubt. When in doubt, always ask, right? Yeah. Is this covered by attorney-client privilege only carbon copy or send communications to your attorney or their legal assistance or anybody involved in that case as far as your defense or offense. Right?- Yep.- Don't send it to the opposing counselor or other people obviously, you know, that'd be very foolish. And, and, and what other takeaways can we, we take away from this conversation for other people that are listening?- Well, the only other thing I wanna bring up is maybe there's some people out there who have been burned. Okay. Maybe an attorney of theirs in the past, disclosed information that was covered by attorney-client privilege and that resulted in some kind of harm to their case because I know we're talking about what happens at the client discloses and then that's considered a voluntary waiver. But what happens if your attorney, the one you trust, doesn't do what he needs to do to protect that from, from inadvertent disclosure or even intentional disclosure. Right. We talked about retracting an email.- Yeah.- But what if he's sitting at a restaurant and discussing your case with a buddy of his- And you're not even there.- Opposing counsel case unbeknownst to him, is sitting in another table.- Wow. Yeah. I never thought about that. Yeah. Because who'd know who the opposing counsel is. If they're represented by some random attorney or the opposing is fine.- I haven't met half of the opposing counsel in person. Right. Yeah. So you don't know, we do a lot of virtual stuff. We, we work all across, you know, the state.- Yeah. So,- You know, it's, you never know who's gonna be sitting at that next table. And so if that ends up tanking your case, you might have a malpractice case.- Yeah. That's that. I never thought about that too. So make sure, you know, you don't have a, an attorney that likes to chit chat and gossip because you're gonna get- Yourself Yeah. Maybe a red flag as if, if he's telling you everybody- Else's story. It reminds me of like that What, what's that guy's? That lawyer that Stormy Daniel's lawyer Mike Ti I think that was- His, yeah. Ti- Yeah, I think something happened allegedly like that. So I, who knows, but something's, I think that's what caused, or who broke the, it was, was it Michael Cohen and Donald Trump? I think they got him on attorney-client privilege. If I remember. Again, I don't know. That's,- Yeah, I don't know the details of all that stuff, but yeah, there's, there was some attorney-client privilege if issues that came up with Stormy Daniels and Avanti.- Yeah, yeah.- Because Avanti did like to speak to the press about the cases.- Yeah. And that's the major issue, right? So sometimes it's, it's a double-edged sword, right? The media is good because you can sometimes get the results you need, but on the other times it's a, it, you know, it can cause you a lot of damage both to clients and the actual law firm and attorney. So- Reputational- Risk, right. I think that that's it for me. Those are all my questions. Do you have anything else you'd wanna to add?- No, I just, if you have any more situations maybe as an entrepreneur that you would've expected attorney client privilege to attach and maybe hasn't or vice versa or other questions you think some of our audience members might- Be thinking. I'm good. I think I'm good for now. So I think we're, so I'm gonna do this right this time. I'm gonna clap 'cause I'm so excited to use this. But that is a wrap for our first episode and oh, that guy's really excited. He's very excited. Hopefully he wants our autographs soon. Okay. So we're all good. Well, thanks to everybody, make sure you like, follow, subscribe, retweet, and share. You guys keep us in business. So thanks again for listening and have a great day. Have a good one.