Attorney Client Privilege: Talking to Your Lawyer.
“I said Luca Brasi sleeps with the fishes and I want to know if my IRA is updated”.
If you tell this to your lawyer, he will probably call the police and turn you in yourself unless you have millions of dollars. Lawyers tend to be unscrupulous where money is concerned. Just ask anybody with money.
Now, while I’m sure very few of you are in the “murdering for the mob” business, so the parameters of attorney client privilege are undoubtedly less exciting in your financial parlance.
The point remains the same though. You should know what information is protected by attorney client privilege and what information is not. Violating the privilege might lead to catastrophe, or it might just be embarrassing. Either way, knowing when to keep your mouth shut is a handy skill that you need to learn.
Attorney client privileged information is that information that a lawyer is not required to give to anybody. Not the plaintiff who is suing you. Not your creditors. This information is even protected from government agencies except in more extreme scenarios, such as mob killings.
However, like so many legal concepts, attorney client privilege is multi-faceted. There are some common mistakes thattyou can make that will compromise your protection. If you fall under these exceptions, your confidential information can be opened up. Even if you’re squeaky clean, you aren’t going to like it when the IRS gives your finances a prostate exam.
If there was a third party present, attorney-client privilege is compromised. Anyone from your financial advisor, to your accountant, to your dear old mother who spends her days in chair by door waiting for you to get a phone call because it’s her primary form of entertainment. Your attorney may not have to talk, but there is nothing keeping your accountant from getting a subpoena, and there is nothing keeping Grandma from gossiping on bridge night.
So, you can do like mobsters do and keep your mob shut, or you can have your lawyer hire third party professionals like accountants. Your attorney can extend attorney-client privilege to other unscrupulous sorts, but you my friend, cannot. This is called a “Kovel” hiring and its origins are worth a read if you like legal history. You should really know
something about this. In recent cases the IRS has been dissolving extensions of attorney-client privilege and I’d hate to give you advice that gets you caught with your pants down.
So, in the meantime, be a gangster and keep your mouth shut.
Attorney Client privilege isn’t a carte blanche either. Only legal advice is protected. Companies with in in-house legal teams can struggle with this.
My man Randy had an employee at his old company who was a lawyer that handled assets. So, if Randy has a chart that organizes the company’s holdings that he gives to his lawyer, he knows that the chart is admissible. Even if it weren’t, once his employee shows it to every accountant and property manager who needs to see it, attorney client
privilege is meaningless.
The solution here is a lot like the last one. Stay-tight lipped. If you have documents that you only want to share with your lawyer, have your lawyer identify them as “Attorney Client Privileged” and keep them out of the hands of non-lawyers. Always tell your attorney what information is privileged when you share it so they can proceed accordingly.
In short, keep everyone on a need to know basis. When you give your attorney privileged information, keep it privileged through the endless web of secrets and lies that is financial law.
Cheers. This has been a Money Matters Matter.
Scott Royal Smith is an asset protection attorney and long-time real estate investor. He's on a mission to help fellow investors free their time, protect their assets, and create lasting wealth.
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