The "Attorney/Client Privilege" (hereinafter "privilege") is derived from a determination within our society that each of us should have the opportunity to engage in discussions with a person with expertise in the law without having to be concerned about whether our comments will be disclosed without our permission.
It is because disclosure of confidential information by the client to the attorney is essential if the attorney is to have the facts upon which to base sound legal advice to the client. Without the privilege an attorney could be compelled to disclose matters of the utmost confidence disclosed to the attorney by the client and clients would be much more reluctant to divulge all the facts.
The privilege has been codified or otherwise memorialized in state statutes and the evidentiary rules of our court systems throughout the country. The privilege is recognized and accepted by all courts in our country. In Mississippi, the privilege is codified in §73-3-37(4) of the Mississippi Code and implanted in the rules of our Mississippi courts through Rule 502(b) of the Mississippi Rules of Evidence (MRE) and Rule 1.13 of the Mississippi Rules of Professional Conduct (MRCP).
A client is a person or organizational entity, either public or private, who is rendered professional legal services by a lawyer or who consults a lawyer with a view to obtaining professional legal services. MRE 502(a)(1).
Generally speaking, a privileged communication is one that is not intended by the client to be disclosed to third persons. MRE 502(a)(5). Not only are the client's communications to the attorney privileged, but the communications from the attorney to the client are privileged. Barnes v. State, 460 So.2d 126, 131 (Miss. 1984).
Mississippi State University (MSU) is the client. The privilege is attached to MSU as an organization, not to individuals employed by MSU. MRCP 1.13.
However, when an MSU "constituent" communicates with an MSU attorney in the constituent's organizational capacity, the communication is an MSU privileged communication. MSU's constituents include those MSU officials in a leadership position and in some cases, but not in all cases, employees in general. Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); MRE 502(a); and MRPC 1.13. The privilege does not preclude or otherwise prevent disclosure of the privileged communication by the MSU attorneys to other MSU constituents when doing so is in the best interest of MSU. MRPC 1.13.
To be an MSU privileged communication, the communication must in fact be transmitted within attorney/client privileged circumstances. Simply having an attorney present when constituents discuss something does not automatically place the matter discussed within the privilege. Simply having an attorney prepare a document, such as a deed, does not place the matter within the privilege. There must be legal advice being sought at the time without non-clients being present.Rogers v. State, 266 So.2d 10 (Miss. 1972); and, Randel v. Yates, 48 Miss. 685, at 689, (1873). A communication that occurs in the presence of a third party is not privileged. Taylor v. State, 285 So.2d 172 (Miss. 1973); Ferrell v. State, 45 So.2d 127 (1950); and, MRE 502(a)(5).
The privilege belongs solely to MSU as an entity regardless of which MSU constituent made the communication to, or received the communication from, an MSU attorney. Barnes v. State, 460 So.2d 126, 131 (Miss. 1984). Authorization to waive the privilege rests with the MSU President. Unless the MSU President authorizes the disclosure of an MSU privileged communication (whether the communication was to or from an MSU attorney), disclosure is prohibited. MRE 502(c).
Written communications by an MSU constituent to, or from, an MSU attorney are privileged so long as each fits within the same dimensions required for oral communications to be considered privileged. However, a document which was not created, compiled, or intended at the time to be an attorney-client privileged communication cannot be made so by simply handing the document to an MSU attorney.
Yes. The primary exception is where the services of the lawyer were sought or obtained to enable or aid one to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. MRE 502(d)(1).
An initial telephone inquiry to the Office of General Counsel may suffice. If not, then you may submit a written memorandum, setting forth your question and the detailed background information that pertains to the question, through your supervisory administrative channels, which, at the discretion of your Division's Vice President, may be forwarded to the Office of General Counsel for consideration.