Does Attorney Client-Privilege Apply in Campus Proceedings?
| Title IX
|The confidential nature of protected communication between attorneys and their clients is one of the greatest features of our legal system. Attorney-client privilege encourages clients to be completely honest with their lawyers, enabling lawyers to give the most effective advice and provide the most effective representation.
However, there is considerable confusion about when communications are protected by privilege and when they are not. For instance, when a student, faculty, or staff member communicates with legal counsel regarding a disciplinary proceeding on campus rather than a case in court, such as a Title IX investigation, are the communications subject to attorney-client privilege?
Although privilege applies somewhat differently under federal rules and state laws, there are some general guidelines that provide a basic understanding of when attorney-client privilege applies.
What is Attorney-Client Privilege?
Attorney-client privilege is an ancient principle that protects certain communications between a lawyer and a client. One judge described it as creating a “zone of privacy” that enables a client to be candid, knowing that information shared with legal counsel will not be used against them.
A client has the right to invoke the privilege for communication that qualifies, and when that happens, the lawyer is not allowed to disclose any of the privileged information to third parties. The client is the one with the power to invoke or waive the privilege. An attorney cannot be compelled to reveal information protected by privilege, and the attorney is also not allowed to voluntarily disclose information that is privileged.
The communications covered by attorney-client privilege include not only matters discussed verbally but also other forms of communication such as email, text messages, and letters. However, the communication must meet certain standards to be protected by privilege.
When is a Communication Privileged?
As a general rule, information communicated between an attorney and client is privileged when:
- The attorney is acting as an attorney
- The person asserting the privilege is a client or seeking to become a client
- The communication was made in confidence
- The information communicated was made during an effort to seek legal advice
While the first three factors are fairly straightforward, it can sometimes be challenging to determine when a communication was made in the process of seeking or giving legal advice. Moreover, it is important to be aware that a communication made in the presence of others or information that is disclosed to others is not protected by privilege. There are exceptions to privilege as well.
How Long Does Attorney-Client Privilege Last?
There is no expiration date on privileged communications. Once a qualifying communication is made, the privilege comes into existence and remains in place even when the relationship between attorney and client ends. An attorney cannot ever be forced (or voluntarily agree) to reveal information shared in confidence, no matter how long ago the communication occurred.
Privilege will end only when the client passes away or takes some action that waives the privilege, either affirmatively or by behaving in a way that is inconsistent with the expectation of confidentiality.
Does Attorney-Client Privilege Apply to Matters Not Handled by Courts?
The details of attorney-client privilege are often determined by court rules such as the Federal Rules of Evidence. Does that mean that the privilege only applies to court cases? No, privilege can attach to information provided and advice given outside of a legal proceeding in court, so long as it pertains to legal issues. That means that information a client shares with their attorney regarding accusations of a breach of the code of conduct or Title IX violation cannot be voluntarily revealed by the attorney and no one can require the attorney to disclose that information. You can feel confident providing information to an attorney you have engaged to protect your interests in a campus proceeding because they are bound by the same professional requirements as if they were representing you in state or federal court. Providing honest and complete information to your attorney—even if it may seem embarrassing—is the best way to enable your legal advisor to prepare the best defense strategy for your case.
However, it is important to remember that others are not bound by the same requirement to keep information confidential. It is important to be very selective when sharing information pertaining to accusations of sexual assault or any other misconduct. Once information is out, it can be freely shared—and distorted—in ways that can harm your case and your personal reputation unnecessarily.
Your School May Have Confidentiality Obligations as Well
Both the provisions of Title IX and provisions in a school’s code of conduct may also provide some protection for confidential information. For instance, Title IX regulations include a general requirement for schools to exercise sensitivity when handling Title IX investigations and adjudications. Information is only supposed to be disclosed as necessary to conduct proceedings. There are restrictions on the disclosure of information during and after investigations have closed, including restrictions on the release of information about disciplinary action.
To gain a full understanding of the privacy protections in place, it is important to carefully review the school’s policy manual as well as the Title IX rules and guidelines currently in force.
You Can Trust Your Attorney to Protect Your Interests in a Campus Proceeding
When you work with the right legal team, you can put full faith and confidence in your attorneys, knowing that they are bound to keep the information confidential and to work to secure the best possible outcome in your case. At Nesenoff & Miltenberg, LLP, we know that the results of a campus disciplinary proceeding can have lifelong impacts, and we work to reach a positive outcome while minimizing negative collateral consequences that can impact your reputation and future opportunities.
If you are potentially facing campus disciplinary proceedings based on allegations of a Title IX violation or violation of school policies, we urge you to take your defense seriously from the outset. If you’d like to schedule a confidential consultation—protected by privilege—to discuss the defense options in your case, contact our team today either through our website or by calling 212-736-4500.