It depends. The attorney-client privilege is one of the oldest privileges recognized and is the core element of any legal relationship. In North Carolina, the Supreme Court has adopted a five-part test to determine whether the privilege applies: 1) the relationship of the attorney and client existed at the time the communication was made; 2) the communication was made in confidence; 3) the communication relates to a matter about which the attorney is being consulted professionally; 4) the communication was made in the course of seeking or receiving legal advice; and 5) the client has not waived the privilege. All five parts must be satisfied for the privilege to be valid.
For the public university as client, trustees and numerous individuals at the senior officer level or other managers acting as agents of UNCW are OGC’s clients. Since the client holds the privilege, advice from the university’s attorneys must be maintained in confidence and not shared with anyone who is not another officer of the university with a need to know. Therefore, in order not to waive the privilege, you must not forward emails with advice from the Office of General Counsel/Attorney General’s Office or share other legal communications with third parties outside of the university or to individuals within the university who are not relevant administrators. Such actions may waive any privilege that would have been attached to the advice.
Just as important in knowing when the privilege applies, there are communications which are not protected. The privilege does not protect 1) underlying facts regarding a matter and 2) requests or communications not specifically sought out as legal advice. Just because an attorney is in a meeting, serving on a university committee or copied on an email or other correspondence does not make the content of communications confidential. Also, documents do not become privileged solely by transmitting them for review by an attorney. Finally, the privilege may not shield the university employee for engaging in illegal activity because a court may compel an attorney to testify against an employee in a grand jury investigation.
The North Carolina Public Records Act makes confidential written, attorney-client communications regarding litigation, claims, settlements or threats of litigation against the university, for a period of three years from the date of the communication. N.C.G.S. §132-1.1 (OGC 08/20/09)
