Attorney-Client Privilege

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What is Attorney-Client Privilege?

The attorney-client privilege isn’t a modern invention; its roots trace back to ancient Rome and were firmly established in English law during the 16th century. Grounded in principles of honor, this privilege serves as a shield, protecting communications between a client and their attorney from compelled disclosure to third parties. It forms a critical cornerstone of the legal profession, fostering a “zone of privacy” where clients can speak openly and honestly with their legal counsel.

This open communication and trust enables attorneys to provide well-reasoned advice, upholding professional responsibilities and contributing to the efficient administration of justice. It’s a powerful tool, protecting the sanctity of these exchanges.

Establishing an Attorney-Client Relationship

The relationship is evident when an attorney explicitly acknowledges their representation of the client. This acknowledgment can take the form of an engagement letter, a fee contract, or even a verbal agreement outlining the scope of representation. Actions, too, can serve as proof of this relationship, such as when an attorney files legal documents or appears in court on behalf of the client.

Confidential Communications and Their Limits

Assuming a valid attorney-client relationship is in place, the protection of the privilege applies to client communications with their attorney and vice versa. But it’s not just words or documents that are covered. Even non-verbal actions, like a nod of the head, can constitute privileged communication.

Waiving the Attorney-Client Privilege

The power to assert or waive the attorney-client privilege lies with the client, not the attorney. In corporate settings, corporate management or the “control group” typically decides whether to assert or waive the privilege. A change in corporate control transfers ownership of the privilege to the new leadership.

Exceptions to the Attorney-Client Privilege

While the attorney-client privilege is a robust protection, it’s not absolute. Certain exceptions exist, driven by public policy considerations:

  • Death of a Client: The privilege may be breached in legal disputes involving the deceased client’s estate or beneficiaries.
  • Fiduciary Duty: Shareholders seeking to pierce a corporation’s attorney-client privilege can trigger an exception.
  • Crime or Fraud: Seeking legal advice to further a crime or fraud, or to cover it up, doesn’t enjoy privilege protection.
  • Common Interest: When two parties are represented by the same attorney in a single legal matter, they cannot assert the privilege against each other in subsequent litigation related to that matter.

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