“Kenny” needed to speak with a lawyer — any lawyer — as soon as possible. “I was in a panic, frightened out of my mind of what could happen,” he told me during our phone call on a recent Friday evening. This was the beginning of one of the strangest 30 minutes I’ve ever spent on the phone with someone in the category of “I need your help now — but I’m not going to give you any information about why.”He not only had a legal problem, but there was an additional reason for his call that had nothing to do with his panic. “I phoned several lawyers’ offices, but all of my calls are being filtered by receptionists, who are not very nice and refuse to connect me with an attorney. “That’s why I am calling you. I read your story about the legal aid office manager who illegally placed microphones and cameras throughout the office and recorded confidential, attorney-client conversations.”A real concernI asked Kenny, “How is that article relevant to your complaint about not being connected with an attorney?””They are asking me why I want to talk with the lawyer. They all want me to go into detail about what I am dealing with. That scares me! I do not want to be in the same situation as the clients in your story whose confidential conversations were recorded without their permission.”About Adviser IntelThe author of this article is a participant in Kiplinger’s Adviser Intel program, a curated network of trusted financial professionals who share expert insights on wealth building and preservation. Contributors, including fiduciary financial planners, wealth managers, CEOs and attorneys, provide actionable advice about retirement planning, estate planning, tax strategies and more. Experts are invited to contribute and do not pay to be included, so you can trust their advice is honest and valuable.”Kenny, the receptionist has to find out if your problem is something the firm deals with.””I don’t want to tell the receptionist too much, because they are not the lawyer,” he explained.His concern is real and raises an important question: If you speak with a lawyer’s receptionist or paralegal instead of the attorney, is what you tell them protected by the attorney-client privilege? In many, but not all, instances, the answer is yes.A cornerstone of our legal systemEveryone has heard of the attorney-client privilege, one of the oldest and most respected principles in the law. It protects confidential communications between a lawyer and their client that relate to the client’s reason for seeking legal advice or services. While there are exceptions — such as asking a lawyer how to get away with a crime — the protection applies to not only verbal discussions but also written correspondence, emails, text messages and other forms of communication. Obviously, a lawyer cannot provide sound advice without knowing all of the facts — the good, the bad, the ugly. The privilege encourages complete honesty without fear that what the client says will be used against them. If clients feared their conversations might later be revealed in court, they would withhold information, thereby frustrating justice.How a law office functionsWhen you first call a law office, often the person answering the phone will be a receptionist. In addition to setting up appointments, their job is to discover why you are calling — your legal problem or concern — and determine if their office handles such matters. They also provide the attorney with the information that is needed before the first consultation. In our office, my paralegal, Anne, will say, “Tell me what’s going on. What’s the problem, and how can we help you?” These open-ended questions yield a great deal of information, enabling her to brief me quickly while the caller is on hold. I then speak with them, further refining the nature of the legal issues to determine if this is something we will handle or can refer to a colleague. I try to talk with everyone who calls our office, even if we do not deal with their specific legal issue, because I know a lot of lawyers can’t be bothered with spending a couple of minutes with someone who is at a low point in their lives. To me, it is part of the reward and duty to the public of being a lawyer. These conversations often are the basis for my articles. In most offices, lawyers do not work aloneWhile there are some solo practitioners — mostly criminal defense attorneys — law offices today are organizations that in many ways resemble teams in which receptionists, intake personnel, secretaries, paralegals, investigators, office managers and translators play vital roles in the delivery of legal services. This is a practical reality, as no law firm could function if clients could speak only with the attorney. For that reason, confidential communications with a lawyer’s receptionist or other authorized staff member for the purpose of obtaining legal advice are, in most circumstances, protected by the attorney-client privilege — just as if the person had spoken directly to the attorney. The lawyer’s employees who gather information for the attorney are legally considered agents of the lawyer, and it is as if the client were speaking directly with the attorney.What a receptionist needs to know The receptionist should be thought of as a screener, and yes, sometimes their questions may be a bit uncomfortable. If you’re calling about an auto accident, you would be asked to describe what happened:What is the name of the other driver?When did the accident occur?Have you spoken with your or their insurance company and/or another lawyer?Did you hire another lawyer and are unhappy with the way they are handling your case?Answers to these questions impact whether the firm is interested or able to take your case. A “conflicts check” must be run to see if the firm already represents the other driver. Also, are there any critical time limits, such as statutes of limitations, to worry about?Present and potential clients are covered by the privilegeIt is important to stress that the privilege is not limited to people who actually become clients of the lawyer. Even if you don’t hire that firm, your conversation remains confidential.Looking for expert tips to grow and preserve your wealth? Sign up for Adviser Intel, our free, twice-weekly newsletter.Clearly, prospective clients deserve protection when they consult a lawyer in good faith for the purpose of getting legal advice. The confidentiality of those communications encourages obtaining advice before making seriously wrong decisions. When privilege does not applyThese are the times when attorney-client privilege does not apply: Non-legal/administrative details. Routine interactions, such as providing your name, asking billing questions or scheduling appointments, are administrative facts, not confidential legal disclosures.Conversations in public. Speaking loudly to a receptionist in a crowded waiting room or public lobby, where others can overhear, voids the requirement for privacy.Unnecessary third parties. If you share details with a receptionist while unrelated strangers or outside parties are present within earshot, the privilege can be waived.Future crimes or fraud. Telling a staff member or attorney about your plans to commit a crime or ongoing fraud strips away confidentiality under the crime-fraud exception.No intention to retain. There’s no protective relationship if you give casual information to a front-desk worker without any intent to seek formal legal representation or advice.What was Kenny so worried about?After explaining all of that to Kenny, I was itching to know what he was so worried about.He told me, “Some people saw a few things I had on my computer that should not be there, and I am being surveilled.””Pornography?” I asked.”Well, I’d prefer not to answer, but you are close,” he replied, thanking me for my time and fatefully concluding, “A police car just pulled into my driveway.”Then I heard, “Hands up. Turn around.” And the call was disconnected.Dennis Beaver practices law in Bakersfield, Calif., and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@gmail.com. And be sure to visit dennisbeaver.com.Related ContentWhy a Law Firm Secretly Recording Client Conversations Is Wrong (and Illegal)The Billable Hour Is on Life Support: How AI Is Killing the ClockOne Cure for Legal Headaches: The Advice of Outside CounselBeyond the Bar: Your 5-Step Guide to Discovering Whether a Lawyer Is ShadyWhat to Do if You’re Concerned About Your LawyerThis article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.
Are Your Secrets Safe With a Law Firm’s Receptionist? All About Attorney-Client Privilege (Though Kenny Is Clearly in Big Trouble)
