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Tip: Understanding attorney-client privilege

Compliance Monitor, August 8, 2007

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The attorney-client privilege keeps communications between a lawyer and his or her client confidential-much like conversations between a physician and a patient are kept confidential. But simply saying something to an attorney does not mean it's protected. The privilege doesn't apply to all situations.

For example, if the hospital's general counsel also is the risk manager and leads an investigation after a patient is injured, the attorney-client privilege probably won't cover that investigation because it was conducted while the attorney was wearing the risk manager hat, as opposed to the counsel hat. If your counsel also has other non-legal duties at the hospital, ask him or her for help in understanding what is and is not covered by attorney client privilege.

The attorney-client privilege won't protect most documents that hospitals create in the normal course of business, such as a peer review report. But it will protect communications between hospital representatives and the hospital's attorney about a lawsuit, provided that certain conditions are met. Here are some tips for preserving the attorney-client privilege:

• Involve your attorney from the outset
• Request legal advice in writing
• Separate legal from business duties
• Mark information as confidential
• Don't share communications with third parties

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