There is a strong public policy to encourage people and institutions to seek
legal advice. In civil and regulatory matters it is assumed that legal advice will
encourage them to be more law abiding. In criminal matters there is a
constitutional right to counsel and any undue restrictions on the
attorney–client relationship would violate that right. It is assumed that clients
cannot work effectively with counsel unless their confidences are protected.
Ten years ago, discussions of legal privilege in medical care were centered
around discovery of hospital incident reports and peer review records in civil
litigation. While these are still significant issues, federal and state criminal
prosecutions for health care fraud have made medical care practitioners much
more concerned with legal privilege as related to business records and
There are two types of legal privilege: the attorney–client communication
privilege, and the attorney work product privilege. These provide varying
amounts of protection, but they do not automatically attach just because an
attorney is involved with a transaction. They depend on both the client’s
behavior and whether the attorney is acting as independent legal counsel.