AbleToTrain by Willing & Able



In the law of evidence, the right of a defendant to refuse to reveal, and to prohibit, private correspondence between the client and his or her counsel from being revealed by any other party. This right covers attorney-client interactions that are created for the purpose of giving or receiving legitimate legal advice or assistance. The right allows a prosecutor to refuse to speak about the client’s correspondence. It belongs to the client, not the solicitor, and can thus be waived only by the client. State statute is applied in federal courts with respect to such a right.

The right of the attorney-client allows applicants to reveal all necessary legal details to their attorneys by shielding those disclosures from prosecution at trial. As long as a court does not force disclosure, the privileged details, kept solely between the solicitor and the client, can stay private. The right does not extend to contacts made in advance of a fraud or other criminal offense between an attorney and a client. The responsibility for determining which details can stay confidential lies with the client. However, in the most general usage, the counsel asserts the right on behalf of the defendant to fail to reveal sought details about the client’s case to the judge or to any other party.



United States v. United Shoe Machinery Corp.

The court expressed five requirements for granting the right: first, at the moment of publication, the person asserting the right must be a client or may have tried to become a client; second, the person linked to the communication must behave as a attorney; third, the correspondence must be solely between the attorney and the client; no non-clients can be included in the communication; fourth, the communication must be exclusively between the attorney and the client (usually, as stated above, through counsel).

Often, even though all five of the United Shoe conditions have been satisfied, the courts will force the details requested to be revealed. They base exceptions to the privilege on Rule 501 of the Federal Rules of Proof, which specifies that “the recognition of a privilege based on a confidential relationship shall be determined on a case-by-case basis.”

Exceptions to the right of the attorney-client will usually prove troublesome for criminal defense attorneys, who try to hold secret the potentially incriminating disclosures of a client. However, one exception is supposed to defence attorneys: disclosing details will deprive him or her of allegations of misconduct, an attorney can override the privilege.



In Swidler & Berlin v. U.S.

The U.S. Supreme Court rejected the chance to further narrow the attorney-client privilege, which addressed the issue of whether the attorney-client confidentiality survives the client’s death, and therefore whether the attorney could be required to reveal details that was protected as private while the client was still alive after the client’s death.

The right survives death, but those references typically take place in the sense of the well-recognized testamentary exception to the privilege allowing disclosure for disputes among the client’s heirs. The possibility of posthumous exposure would have little to no chilling impact on client contact while limited to the criminal sense, but that the cost of protecting correspondence after death would be significant. The posthumous exception to the attorney-client privilege for correspondence in which the relative value of specific criminal litigation is significant, concluding that the privilege is not absolute in certain conditions and that a balance test may instead apply.

Therefore, correspondence will remain private even after death, allowing the person to consult thoroughly and frankly with lawyers. While the fear of exposure can be diminished if disclosure in a criminal context is limited to posthumous disclosure.