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 compliance audits.

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.