By Jeffrey B. Miller, Esq.
“Never miss a good chance to shut up.” Aptly stated advice from the great American philosopher, Will Rogers. From the wide open spaces of Wyoming to cramped board rooms in Philadelphia, few times does this advice apply so well as when considering keeping sensitive matters confidential under the Attorney-Client Privilege. Since times prior to the drafting of United States Constitution the Attorney-Client Privilege has existed to encourage persons to seek attorneys’ advice on legal matters, to encourage full and frank communications between attorneys and their clients related to those matters, and through this process to promote voluntary compliance with laws and regulations.
Throughout these times into today the Privilege has provided some protection for confidential communications between attorneys and their clients. However, it has been a privilege – not a legal right. As a result, the application of the Privilege has not been and is not now absolute. In fact, this protection currently applies only in limited circumstances, and can be easily and inadvertently lost. Physicians who are interested in keeping information confidential must treat its confidentiality with care, and within the Privilege’s limitations.
First and foremost, physicians must understand the scope of the Privilege – what can be protected as confidential, and what cannot be protected as confidential. Most information related to a particular issue that a physician may desire to keep confidential cannot be protected under the Attorney-Client Privilege. The Privilege’s essence is that the actual communications made between a physician and his or her attorney, such as the physician’s questions and the attorney’s answers, can be kept confidential. Other communications or information related to the issue at hand, including the facts that underlie the attorney-client discussions, cannot be protected under the Privilege. In short, while client and attorney communications themselves can be kept confidential, the facts that result in a physician’s circumstances cannot be kept confidential under the Privilege, and the physician cannot create confidentiality for those facts merely by discussing those facts with his or her attorney. A physician who is concerned about a particular happening in his office can discuss the matter with his or her attorney, and those discussions and any related communications between the physician and his or her attorney can, under the right circumstances, be kept confidential under the Privilege. However, the happenings themselves, including office conversations and documents generated at the time of the happenings, cannot be kept confidential under the Privilege.
Within the scope of the above, communications between clients and their attorneys may only be protected where certain requirements are satisfied. First, the Attorney-Client Privilege is applicable and can be maintained only where a client is seeking advice from a licensed attorney for the specific purpose of obtaining legal counsel or services. For an individual physician or sole proprietorship, the client is the physician himself or herself. In the business setting where more than one physician is involved, however, the attorney’s client is often the partnership, corporation or company itself; not any individual physician or physician-owner. In these circumstances the physician practice itself has the right to decide whether to exercise the Privilege and keep the communications confidential; not individual physicians. As a result, there may be circumstances where individual physicians desire to keep communications confidential under the Privilege, but the practice itself decides to waive the Privilege and disclose the communications. In these cases the individual physicians cannot keep the communications confidential.
The purpose of the communication must also be appropriate under the Privilege to obtain and maintain protection. The Privilege is only applicable where the client is seeking advice for the specific purpose of obtaining legal counsel or services. A note from one physician to another, or from a physician to his office staff (or vice versa), could not be protected as confidential by the Privilege. Moreover, even in the case of a client’s communications with his or her attorney, the attorney must be acting in his or her capacity as an attorney at the time, with a reasonable expectation that the attorney is acting in that capacity.
This requirement should also be approached carefully. While some say that hindsight is 20-20, a communication made with the intent to obtain legal advice from an attorney can, in retrospect, sometimes appear to be not much more than a social conversation. Certainly a casual conversation in a social situation with a friend or acquaintance who happens to be an attorney, depending upon the circumstances, may not be found to have been for the purpose of obtaining legal advice. As a result, such conversations may not be able to be protected under the Privilege. Physicians who would like to be able to assert the Privilege for a conversation or other communication should take care that the conversation occurs in a context that demonstrates the intent of the conversation – to obtain legal advice or services.
Another sometimes problematic requirement for the Privilege is that the communication must be confidential, and must remain confidential at all times, to be protected. To address this requirement any communication between a physician and attorney that requires confidentiality should take place under circumstances that evidence confidentiality, such as in the physician’s or attorney’s private office. Regardless of the location of the conversation, all conversations should take place in areas that are outside the range of others who may overhear same. Moreover, to further protect the confidentiality of the communications, persons present for these communications should be limited to those who are necessary or appropriate so that the attorney can provide the physician or physician practice with adequate, informed legal advice.
When attorneys are to review matters with other physician practice employees, physicians should seek specific legal advice on how to best protect the confidentiality of the information obtained during these reviews from their local legal counsel. As part of this process, physicians may consider ensuring that a careful, documented process is followed designed to enhance the physician’s or physician practice’s ability to exercise the Privilege should same become an issue. This process may include authorizing the attorney, in writing, to question specifically identified employees who are reasonably necessary to interview for the purpose of obtaining the attorney’s legal advice, and at the same time formally requesting, in writing, that the relevant employee(s) speak with the attorney regarding any information that has been obtained within the scope of his or her employment, emphasizing the practice’s need for information and the confidential nature of the attorney’s investigation. Once the communications are completed they must remain confidential, and may only be shared with or distributed to those practice employees who are necessary for resolution of the matter at issue.
There is one additional hazard to the applicability of the Attorney-Client Privilege. Specifically, the Attorney-Client Privilege does not protect any communication made for the purpose of furthering contemplated or ongoing criminal or fraudulent conduct. Essentially, this exception applies where the communications with legal counsel are intended to facilitate or to conceal an ongoing crime or fraud, whether or not a crime actually occurs, and whether or not the attorney is aware of the illegality involved. To protect against this exception physicians and their attorneys should take great care to demonstrate and document that the advice provided is not intended to further criminal or fraudulent conduct. In this regard the physician and attorney should carefully document the facts and the circumstances discussed, along with the legal advice provided, including documenting their intent to stay within the requirements of the law.
In recent years the maintenance and use of the Attorney-Client Privilege has become increasingly difficult for those working in health care. Most health care providers in most circumstances do not desire to enter into a protracted legal fight over issues that may arise with government agencies. As a result, many choose to cooperate with government agencies should an issue arise with the goal of reaching a settlement. Unfortunately, this desire to cooperate must often be accompanied by waiving the Attorney-Client Privilege. As of January, 2003, the United States Department of Justice began following the “Thompson Memorandum,” drafted by then Deputy Attorney General Larry Thompson. This Memorandum called on United States Attorneys to consider the waiver of the Attorney-Client Privilege as an integral part of determining whether a company is cooperating with the government during an investigation. As a result, more frequently than ever prosecutors and regulators are asking for the waiver of the Attorney-Client Privilege as a contingency to settling a dispute.
Since prior to the founding of the United States, the Attorney-Client Privilege has existed to encourage persons to seek attorneys’ advice on legal matters, to encourage full and frank communications between attorneys and their clients related to those matters, and through this process to promote voluntary compliance with laws and regulations. In this regard the Privilege does provide some protection for confidential communications between attorneys and their clients. However, physicians who are interested in keeping information confidential under the Privilege must treat its confidentiality with care, and within the Privilege’s limitations.
Jeffrey B. Miller, Esq., is Chief Compliance Officer and Counsel, Synthes, Inc.