A Guide for Harvard
The attorney-client privilege preserves the confidentiality of communications between lawyers and their clients. The privilege protects individuals and institutions. Thus, communications that Harvard faculty and staff have with Harvard attorneys, in confidence, for the purpose of seeking legal advice concerning Harvard legal matters, are protected by the attorney-client privilege from disclosure to opposing parties. Such communications are privileged whether they are oral, written or electronic.
A memorandum from one administrator to another concerning a legal matter typically is not privileged. For the privilege to exist, the communication must be to, from, or with an attorney. In addition, the communication must be for the purpose of requesting or receiving legal advice. The following example illustrates this point.
Example 1: A former employee threatens to sue the University for wrongful termination. Professor Dunster, the employee’s former supervisor, writes a memorandum to University Attorney Eaton, requesting legal advice. He also sends a copy of his memorandum to Dean Chauncy. Both copies of the memorandum are privileged; the first as an attorney-client communication and the second because Professor Dunster is sharing a privileged communication with Dean Chauncy, who is a University official with a need to know about the threatened lawsuit by virtue of his responsibility for Professor Dunster and those who work for him. If, however, Professor Dunster writes a separate letter to Dean Chauncy concerning the employee’s allegations, this letter is not privileged and would be subject to disclosure in a lawsuit.
Communications must be kept confidential for the privilege to apply. If the substance of attorney-client communications is disclosed to persons outside the University – or even to persons within the University who are not directly involved in the matter – the privilege may be extinguished. Your communications with Harvard attorneys should never be discussed with anyone outside Harvard, including family members or friends; within the University, they should be discussed only with persons who have responsibility for the particular matter. Continuing the scenario in Example 1, the following illustrates this point.
Example 2: Dean Chauncy meets with attorney Eaton to discuss the case. Later, over lunch with a colleague from another department who has no role in the case, Dean Chauncy recounts Eaton’s advice. Dean Chauncy’s earlier discussion with Eaton is no longer privileged. As a result, when Dean Chauncy is called to testify in the case, he can be compelled to describe his conversation with Eaton.
All written communications (including e-mail) from Harvard faculty and staff to Harvard attorneys concerning legal matters should be marked “Privileged and Confidential” by the sender. While this marking is not essential to bring the communication within the attorney-client privilege, it can help to protect the communication from compelled disclosure in litigation.
In requesting or receiving legal advice concerning University business, be assured that attorneys in Office of the General Counsel will preserve the privileged nature of all communications. If you have any questions concerning the attorney-client privilege, please telephone the Office of the General Counsel at 495-1280.