Attorney-Client Privilege and Confidentiality
Privilege and confidentiality are related but not identical. The exam tests the evidence privilege under N.J.R.E. 504, the broader ethical duty under RPC 1.6, and how paralegals fit within both.
Attorney-client privilege
N.J.R.E. 504 protects confidential communications between a client, or the client's agent, and a lawyer, or the lawyer's representative, made to obtain or provide legal advice. Communications with a paralegal or other agent reasonably necessary to the representation are covered. The client holds the privilege; it survives termination and death and can be waived.
The privilege does not ordinarily cover facts the client knew independently, the client's identity, the fee arrangement, or communications made to further a crime or fraud. A third party's presence can defeat confidentiality.
Ethical confidentiality
RPC 1.6 is broader. It covers all information relating to the representation, not just communications. A lawyer may disclose only with informed consent or under a recognized exception. Paralegals are bound by firm policy and by the supervising lawyer's RPC 5.3 obligations; they must not discuss matters in public, share passwords, or access files without a need to know.
Work product
R. 4:10-2(c) protects materials prepared in anticipation of litigation. Mental impressions, conclusions, opinions, and legal theories receive heightened protection. A paralegal's interview notes may be work product as well as privileged.
Worked example
A client emails a paralegal with medical history and her theory of the accident. The email is privileged and confidential. If the paralegal forwards it to a friend, the privilege may be waived and RPC 1.6 violated. The firm should notify the attorney, attempt to contain the disclosure, and document the steps.
Traps
'Off the record' does not make an otherwise unprivileged statement privileged. Elevator conversations and social media posts are common leaks. Copying a third party on an internal email can waive privilege. Inadvertent production requires prompt remedial action, not silence.