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The Case for the Attorney-Client Privilege

Posted by Barbara J. Zabawa | Jul 05, 2016 | 0 Comments

The attorney-client privilege is a rule of evidence that prohibits the lawyer from disclosing information relayed by clients.  The privilege belongs to the client, and the client can choose to waive it.  However, the attorney-client privilege can mean so much more, even to those who are not clients of the lawyer.  Some may argue that there is no need for the attorney-client privilege in our open society that shares everything and an increased willingness to bargain away the privilege during negotiations.  Moreover, there are many different players in the health and wellness compliance field who do not practice law or are not trained as lawyers.

Based on my experience, I disagree that the attorney-client privilege is an antiquated concept.  In my experience, the attorney-client privilege is more than just a discovery tool for litigation.  It is symbolic of the legal profession in its purest form.  The attorney-client privilege reaches beyond client confidences and instills a sense of trust even among those who are not our clients.  As an example, I recently had lunch with a colleague who said he shared information that he would not share with a nonlawyer.  Even though that information is not subject to any kind of privilege, the fact that it exists for me in other contexts provided a veil of trust in our relationship.

So, regardless of whether individuals or organizations are more willing to bargain away their privileged communications, the attorney-client privilege still serves a valuable purpose.  It provides clients and others within our communication circles with an air of confidence and trust in what we as lawyers say and do.  Earning and keeping that trust and confidence with others is priceless.    

About the Author

Barbara J. Zabawa

Barbara is lead author of the book Rule the Rules on Workplace Wellness Programs, published by the American Bar Association. She is a frequent writer and speaker on health and wellness law topics, having presented for national organizations such as WELCOA, National Wellness Institute, HPLive, Healthstat University and HERO. Barbara J. Zabawa is a Clinical Assistant Professor for the University of Wisconsin Milwaukee College of Health Sciences, Department of Health Services Administration where she teaches graduate and undergraduate courses in health law and compliance, US health care delivery and health professions career development. Barbara also owns the Center for Health and Wellness Law, LLC a law firm dedicated to improving legal access and compliance for the health and wellness industries.  Before graduating with honors from the University of Wisconsin Law School, she obtained an MPH degree from the University of Michigan. Immediately prior to starting her own firm, she was Associate General Counsel and HIPAA Privacy Officer for a large health insurer where she advised on Affordable Care Act matters. She was also a shareholder and Health Law Team Leader at a large Wisconsin law firm. Barbara serves health and wellness professionals and organizations across the country as an advocate, a transactional lawyer and a compliance resource. Her commitment to improving health and wellness also shows through her community service. Barbara founded the Wellness Compliance Institute, a nonprofit organization that seeks to improve wellness program and activity compliance. She also is a Board Member for the Rogers Memorial Hospital Foundation, a health care organization that specializes in treating mental illness and she chairs the State Bar of Wisconsin Health Law Section. Barbara is licensed to practice law in both Wisconsin and New York.

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