New York Law (NYLE) Practice Exam

When can the attorney-client privilege be waived?

1. Only by the client

2. By the organization

3. By the lawyer representing the organization

4. By a third party's agreement

The correct answer is: By the organization

The attorney-client privilege can be waived by the organization, which includes the authority to make decisions regarding the privilege within the framework of its governance. When the organization itself decides to disclose information that was otherwise protected by the privilege, this constitutes a waiver. The privilege is designed to protect confidential communications made for the purpose of obtaining legal advice, but since organizations are not individuals, it is the organizational entity that holds the privilege and can choose to waive it. A waiver may occur in various situations, such as when the organization publicly discloses privileged communications or when it puts at issue the privileged information in a legal proceeding. This reflects the principle that the privilege is meant to protect the client's interest, and the organization, through its authorized agents, has the power to control that privilege. The other choices involve circumstances that either misinterpret who holds the privilege or do not reflect how the privilege operates in the context of organizations. While it’s true that a client can ultimately direct the waiver, in the case of an organization, it is the organization itself that has the authority. Thus, the focus on the organization's role in waiver is what makes this choice the correct one.