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Attorney-client Privilege: Overview

Introductionary notes

The right of the attorney-client privilege is an evidentiary rule that protects all lawyers and their clients from being required to reveal private correspondence made between them for the purpose of giving or receiving legal advice or assistance. The privilege is intended to promote a frank, transparent and uninhibited dialogue between attorney and client such that a properly prepared attorney who is aware of all the relevant details that the client can have is competently presented to the legal needs of the client. During any form of legal action, civil, criminal, or administrative, and at any time during such proceedings, pre-trial, during trial, or post-trial, attorney-client privilege can be raised.

The right goes back to ancient Rome, where governors were prohibited from calling their supporters as witnesses out of fear that the governors would lose trust in their own defenders. The lawyer-client privilege was the first evidentiary privilege acknowledged by English common law in 1577. The confidential existence of attorney-client correspondence was covered by English common law, regardless of whether such communications took place in public or in private. This approach to attorney-client privilege was followed by the American colonies, and Delaware codified the privilege in 1776 in the first constitution.


The Attorney-Client Privilege Components, Scope and Implementation

Because the right of the attorney-client frequently prohibits disclosure of details that may be pertinent to a legal case, while considering objections based on privilege, the courts are careful. Generally, most courts demand that some elements be shown before finding that the privilege applies. Although the elements differ from jurisdiction to jurisdiction, in U.S. v. United Shoe Machinery Corp., 89 F.Supp., one often quoted recitation of the elements was expressed. 357 (D.Mass. 1950), where the court listed the following five-part test: (1) the person asserting the right must be a client or someone seeking to develop a consumer relationship; (2) the person negotiating with the client must be an attorney and behave as a lawyer at the time of the contact; (3) the communication must be between the attorney and the client.


Attorney-Client Privilege Spectrum and Application

In a court’s review of an argument for privilege, the five-part test is usually the starting point. Each aspect appears straight-forward on its face, but can be difficult to implement, particularly if the consumer is a business and not a natural individual. Corporate clients raise concerns about who, on behalf of the company as a whole, should speak for the organization and claim the attorney-client privilege. Some courts have ruled that the attorney-client privilege can only be exercised by the upper management of a company. However, an overwhelming majority of courts have found that the right can be claimed not only by the officers, directors, and board members of a company, but also by any employee who has communicated with an attorney to seek legal advice at the behest of a corporate superior.


The attorney-client privilege applies only to the client and not to the attorney, whether the client is a natural person or a business.

As a result, consumers may prohibit lawyers from revealing their secrets, but lawyers have no authority to prevent their customers from opting to waive the privilege and testify in court, speak to the police, or otherwise exchange sensitive attorney-client details with third parties who are not privy to confidential conversations. Clients may explicitly waive attorney-client privilege through their words or indirectly through their actions, but a court can only conclude that the privilege has been waived if there is a strong indication that the client has not taken measures to keep the communications confidential. Normally, the inadvertent disclosure of sensitive information to a third party by an attorney or a client would not be sufficient to constitute a waiver. If a client wishes not to waive the privilege, the lawyer will then, on behalf of the client, claim the privilege to protect both the client and the lawyer from having to reveal sensitive information exchanged during their relationship.

In most cases, courts can quickly decide if the person with whom a specific discussion took place was in fact an attorney. However, in a few cases, courts are asked to determine if a contact with an unlicensed or disbarred attorney should be entitled to the right. In such cases, courts will also find that if the plaintiff honestly feels that he or she was speaking with a licensed attorney, the right extends. But this standard has been relaxed by courts in some jurisdictions, ruling that the right extends to correspondence between clients and unlicensed lay persons representing them in administrative proceedings.

While several courts emphasize that the right of attorney-client should be exclusively limited to attorney-client interactions, the privilege of attorney-client extends beyond the immediate attorney-client relationship to include the spouses, colleagues, and office staff members of an attorney (e.g. assistants, file clerks, telephone operators, messengers, law clerks) who work with the attorney. The involvement of a third party who is not a member of the attorney’s firm, however, will often defeat a privilege argument, even if that third person is a member of the family of the client.


Many courts have interpreted attorney-client rights as “inviolate.”

This definition, however, is misleading. Several exceptions apply to the attorney-client privilege. Federal Rule of Evidence 501 states that “the recognition of a privilege based on a confidential relationship … should be determined on a case-by-case basis.” In assessing claims for privilege against complaints that an exception should be made in a specific case, courts can weigh the advantages to be achieved by maintaining the dignity of attorney-client confidences against the possible harms .

One of the oldest exceptions to attorney-client privilege is the crime-fraud exemption. The right of the attorney-client does not apply to correspondence made in conjunction with a client requesting counsel about how to perform a fraudulent or illegal act. Nor would the declaration of intent of a client to commit a crime be considered privileged, even though the client was not asking for guidance about how to commit it. The right of the attorney-client is ultimately intended to serve the interests of justice by isolating communications rendered by the attorney-client in order to facilitate adversarial proceedings. The interests of justice, however, are not served by pressuring lawyers to withhold data that may help deter illegal or fraudulent actions. Consequently, lawyers may be required to report certain information to a court or other prosecuting authorities in almost all jurisdictions.

A group seeking discovery of confidential correspondence based on the exception to crime-fraud must make a threshold showing that the legal advice was obtained and closely linked to the fraudulent activity in furtherance of the fraudulent activity. This responsibility is not met by the party seeking disclosure simply by alleging that a crime or fraud has occurred and then suggesting that disclosure of confidential correspondence will help prove the crime or fraud. There must be a clear showing that a particular document or contact was made in furtherance of the client’s suspected crime or fraud.

The fact that there is an attorney-client relationship between two people is not usually privileged by itself. U.S. v. Leventhal, 961 F.2d 936 F.2d 936 (11th Cir. 1992). However, some courts will impose the right if exposure of an attorney-client relationship could prove incriminating to the client. 511 F.2d 882d 882d in re Michaelson (9th Cir. 1975). Client names and sums paid to their lawyers in commissions are not usually privileged. Nor can clients necessarily succeed in asserting the right of lawyers who want to incorporate confidential information in a case brought by a defendant accusing the lawyer of misconduct. In such cases, courts would not allow consumers to use the right of the attorney-client as a tool to silence the lawyers who have served them. Courts would encourage both sides to have a say in customers’ malpractice cases brought against their former lawyers.