The Attorney-Client Privilege under Professional Responsibility
🔹 Definition
The Attorney-Client Privilege is a rule of evidence that protects from disclosure any confidential communication made between a client and their attorney for the purpose of seeking or providing legal advice.
🔹 Elements of Attorney-Client Privilege
For the privilege to apply, the following elements must be present:
A Communication – There must be a communication between the client and the attorney.
Between Privileged Parties – The communication must be between a client (or potential client) and a licensed attorney or their subordinate.
In Confidence – The communication must be intended to be confidential.
For the Purpose of Seeking Legal Advice – The communication must be made for the purpose of obtaining or providing legal advice, not business or personal advice.
🔹 Who Holds the Privilege?
The client holds the privilege, not the attorney.
Only the client can waive the privilege, either expressly or by implication (e.g., sharing the information with third parties).
🔹 Scope and Limitations
✅ What is Protected:
Oral and written communications.
Legal strategies, assessments, and recommendations.
Internal law firm communications relating to client advice (in certain jurisdictions).
❌ What is Not Protected:
Underlying facts (e.g., "Where were you on the night of the crime?" is not protected just because the answer was communicated to a lawyer).
Non-legal business advice.
Communications with third parties (unless they are necessary agents like interpreters or paralegals).
🔹 Exceptions to the Privilege
Crime-Fraud Exception
Communications made in furtherance of a crime or fraud are not protected.
Case: Clark v. United States, 289 U.S. 1 (1933)
The U.S. Supreme Court held that privilege does not apply when the client is seeking advice or assistance to commit a future crime or fraud.
Waiver
If the client discloses the privileged communication to a third party, the privilege may be waived.
Dispute between Attorney and Client
In malpractice or fee disputes, the attorney may disclose privileged information as necessary to defend themselves.
Case: Resolution Trust Corp. v. H——, P.C., 128 F.R.D. 647 (N.D. Tex. 1989)
Joint Clients
If two parties jointly consult an attorney, neither may assert privilege against the other in a future dispute between them.
🔹 Related Case Law
Upjohn Co. v. United States, 449 U.S. 383 (1981)
Issue: Whether attorney-client privilege extends to communications between corporate counsel and lower-level employees.
Held: Yes. The U.S. Supreme Court rejected the "control group" test and held that privilege applies to any employee who communicates with counsel at the direction of superiors for the purpose of legal advice.
Swidler & Berlin v. United States, 524 U.S. 399 (1998)
Held: Attorney-client privilege survives the death of the client. This ensures that the client can be fully candid during their lifetime without fear that disclosures will be revealed after death.
People v. Meredith, 29 Cal.3d 682 (1981)
Held: If a defense attorney learns of or physically alters real evidence (e.g., retrieves a weapon from a location), the act of retrieving it may not be protected under the privilege.
🔹 Difference from Confidentiality
Attorney-Client Privilege is a legal rule of evidence.
Duty of Confidentiality under professional conduct rules (e.g., ABA Model Rule 1.6) is broader and applies regardless of whether a court proceeding is involved.
Example: An attorney may not reveal information relating to the representation of a client—even if it’s not protected by privilege—unless an exception applies.
🔹 Application in Legal Ethics
Under the ABA Model Rules of Professional Conduct, particularly Rule 1.6, lawyers must maintain client confidences. Violating privilege or confidentiality may result in:
Professional discipline.
Disqualification from a case.
Civil liability for malpractice.
🔹 Summary
| Element | Description |
|---|---|
| Who Holds Privilege | The client |
| What is Protected | Confidential communications seeking legal advice |
| Exceptions | Crime-fraud, waiver, joint clients, attorney-client disputes |
| Survives Client's Death? | Yes (Swidler & Berlin) |
| Corporate Clients | Applies to all employees involved in legal consultation (Upjohn) |
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