The attorney-client privilege is one of the oldest and most widely-known—if generally misunderstood—common law doctrines. In its broadest outline, it’s a rule that’s fairly easy to grasp and apply: a communication between a lawyer and a client for a legal purpose that is held in confidence is protected from disclosure by privilege. The rule ensures that clients can be candid with their lawyers without fear that their candor is discoverable (and ultimately harmful to their case). But don’t miss the important caveat: the communication must be held in confidence, meaning when there’s another, non-client party in on the conversation, there is no privilege.
This presents an obvious but often missed dilemma, as modern litigation often involves four critical parties sharing communications: the person or entity being sued, their attorney, their liability insurer(s), and their broker. This situation is so ubiquitous that it may be easy to forget that under the traditional rule, when you share information with your insurer or your broker, you’re breaking privilege.