Attorney-Client Privilege

Attorney-client privilege assures the confidentiality of communications between an attorney and his client. This privilege is granted in order to foster candid communication between lawyer and client. In 1981, the Supreme Court found in Upjohn Co. v. United States that the privilege was intended to promote "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of the law and the administration of justice."

Generally, in U.S. jurisdictions, four elements of the attorney-client communication must be in place in order to assure its confidentiality. First, there must be some kind of communication. Second, this communication takes place directly between the attorney and the client. Third, this communication must have been made confidentially, and fourth, the communication must be made for the purpose of receiving legal counsel.

In line with these four elements, the attorney-client privilege does not apply to conversations that the client had with the attorney unrelated to the legal matters. For instance, if the lawyer provided business advice, this information would not be privileged. In addition, if the lawyer served as a tax return preparer for the client, the tax information would not be privileged.

The privilege is not applicable to information that is not confidential, such as information publicly reported in the press or made in the presence of individuals other than the lawyer. If privileged information is disclosed by either the client, lawyer or a third party, the information loses its privileged status. Attorney-client privilege does not apply either to information that the lawyer obtained from a third-party source, though the communications between the lawyer and client regarding this information is privileged.

Communications made in the presence of individuals other than the attorney or client are no longer considered confidential and are not subject to the privilege. However, if a number of people are preparing a joint defense, the communications among them regarding the defense are usually privileged.

The attorney-client privilege has variant applications in different jurisdictions. Laws vary from state to state. Generally, the court determines which laws to apply by deciding which state has the greatest interest in the case or the principal location of the parties involved. Federal privilege laws are sometimes applied when disputes regarding the appropriate state application of these laws arise.

U.S. Supreme Court decisions have preserved the client-attorney privilege posthumously, reasoning that this would be consistent with the client's wishes. However, in accordance with its concern for preserving the client's interests, the Supreme Court occasionally agreed to suspend this privilege after death. These privileges can be suspended to assist in the disposal of the client's estate.

The privilege does not apply to attorney-client communications if they are intended to promote criminal activity. This exception is based on the reasoning that the privilege was created to encourage attorney-client communications, and criminal activity has no place in such a relationship.

Due to the attorney-client privilege and professional standards, attorneys must vigilantly consider their communications to the media or to government investigators. Lawyers must first receive their client's approval before releasing any information protected by the privilege. The client and lawyer should outline the scope of the disclosure before the lawyer makes any public statements.

The U.S. Department of Justice has often been identified as an entity that assaults the attorney-client privilege. Federal prosecutors routinely request that corporations waive their attorney-client privilege in exchange for lighter charges and sentencing. Opponents of this federal policy believe that it abusively strips the investigated corporations of their rights to confidential counsel.

An additional obstruction to the U.S. attorney-client privilege is globalization. Generally, the attorney-client privilege in the European Union has a much narrower framework. American companies with a presence in a European country are governed by these limited privilege laws. Communications that are not privileged under E.U. law may also be removed from their privileged status in the United States. A communication that is publicly disclosed, or can be publicly disclosed, in a European Union investigation, can no longer be considered a confidential attorney-client communication.

Attorney-Client Privilege: Selected full-text books and articles

The Attorney-Client Privilege for In-House Counsel When Negotiating Contract By Van Deusen, Mark C William and Mary Law Review, Vol. 39, No. 4, March 1998
Congress V. the Attorney-Client Privilege: A "Full and Frank" Discussion By Beard, Glenn A American Criminal Law Review, Vol. 35, No. 1, Fall 1997
Dead Men's Lawyers Tell No Tales: The Attorney-Client Privilege Survives Death By Kramer, Jon J Journal of Criminal Law and Criminology, Vol. 89, No. 3, Spring 1999
Law Office Searches: The Assault on Confidentiality and the Adversary System By Davis, John E American Criminal Law Review, Vol. 33, No. 4, Summer 1996
Attorney-Client Privilege: CPAs and the E-Frontier; CPAs Performing Litigation Support Must Be Careful Not to Inadvertently Waive Privilege By Pacini, Carl; Hillison, William; Fennema, M. G.; Placid, Raymond Journal of Accountancy, Vol. 197, No. 4, April 2004
Accountants and the Attorney-Client Privilege By Segal, Mark A Journal of Accountancy, Vol. 183, No. 4, April 1997
When Talk Is Not Cheap: Communications with the Media, the Government and Other Parties in High Profile White Collar Criminal Cases By Wilkinson, Beth A.; Schulman, Steven H American Criminal Law Review, Vol. 39, No. 2, Spring 2002
Internal Company Investigations and the Employment Relationship By Warren Freedman Quorum Books, 1994
Librarian’s tip: "Attorney-Client Privilege" begins on p. 84
Contractual Waiver of Corporate Attorney-Client Privilege By Kressel, Mark A The Yale Law Journal, Vol. 116, No. 2, November 2006
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