Attorney-client privilege
Encyclopedia
Attorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney
and keeps those communications confidential.
The attorney–client privilege is one of the oldest recognized privileges for confidential communications.
The United States Supreme Court has stated that by assuring confidentiality the privilege encourages clients to make "full and frank" disclosures to their attorneys, who are then better able to provide candid advice and effective representation.
There are a number of exceptions to the privilege in most jurisdictions, chief among them:
A corollary to the attorney–client privilege is the joint defense privilege
, which is also called the common interest rule. The common interest rule "serves to protect the confidentiality of communications passing from one party to another party where a joint defense or strategy has been decided upon and undertaken by the parties and their respective counsel."
An attorney speaking publicly in regard to a client's personal business and private affairs can be reprimanded by the bar and/or disbarred, regardless of the fact that he or she may be no longer representing the client. Airing of a client's or past client's dirty laundry is viewed as a breach of fiduciary responsibilities.
The attorney–client privilege is separate from and should not be confused with the work-product doctrine.
The privilege protects the confidential communication, and not the underlying information. For instance, if a client has previously disclosed confidential information to a third party who is not an attorney, and then gives the same information to an attorney, the attorney–client privilege will still protect the communication to the attorney, but will not protect the communication with the third party.
The privilege may be waived if the confidential communications are disclosed to third parties.
Other limits to the privilege may apply depending on the situation being adjudicated.
, or fraud. In Clark v. United States, the US Supreme Court writes that "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." The crime-fraud exception also does require that the crime or fraud discussed between client and attorney be carried out to be triggered. US Courts have not yet conclusively ruled how little knowledge an attorney can have of the underlying crime or fraud before the privilege detaches and the attorney's communications or requisite testimony become admissible.
If a Trustee secures counsel for the administration of a trust, the Trustee can not exclude the communication from the trust's Beneficiaries. The logic since the Beneficiaries are the principals of the Trustee who is simply acting as their agent in regard to the trust and the attorney client communication.
Lawyers may also breach the duty where they are defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a lawyer effectively waives rights to confidentiality. This is justified on grounds of procedural fairness - a lawyer unable to reveal information relating to the retainer would be unable to defend themselves against such actions.
Nonetheless, the lawyer still owes a duty of loyalty, and clients may feel betrayed if such information is disclosed, even if it becomes public knowledge. Though there are no legal ramifications for disclosure, discretion on part of the lawyer may be in the long term interests of maintaining the propriety of the legal profession.
of a last will and testament. Previously confidential communications between the lawyer and testator
are no longer secret for the purpose of proving the Will is the intent of the now deceased decedent. In many instances, the will, codicil
, or other parts of the estate plan
require explanation or interpretation through other proof (extrinsic evidence), such as the attorney's file notes or correspondence from the client.
In certain cases, the client may desire or consent to revelation of personal or family secrets only after his or her death; for example, the Will may leave a legacy
to a paramour or a natural child.
Courts have occasionally revoked the privilege after the death of the client if it is deemed that doing so serves the client's intent, such as in the case of resolving testamentary disputes among heirs.
, may decide to work only with an attorney or only with an accountant who is also an attorney; some or all of the resulting communications may be privileged provided that all the requirements for the attorney–client privilege are met. The mere fact that the practitioner is an attorney will not create a valid attorney–client privilege with respect to a communication, for example, that involves business or accounting advice rather than legal advice.
Under Federal tax law in the United States, for communications on or after July 22, 1998, there is a limited Federally authorized tax practitioner privilege that may apply to certain communications with non-attorneys. See Accountant-client privilege
.
to determine whether to apply the privilege law of the relevant state or federal common law. If the case is brought to the federal court under diversity jurisdiction
, the law of the relevant state will be used to apply the privilege. If the case involves a federal question, the federal court will apply the federal common law of attorney–client privilege; however, Rule 501 grants flexibility to the federal courts, allowing them to construe the privilege "in light of experience and reason."
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
and keeps those communications confidential.
The attorney–client privilege is one of the oldest recognized privileges for confidential communications.
The United States Supreme Court has stated that by assuring confidentiality the privilege encourages clients to make "full and frank" disclosures to their attorneys, who are then better able to provide candid advice and effective representation.
General requirements under United States law
Although there are minor variations, the elements necessary to establish the existence of the attorney client privilege are:- The asserted holder of the privilege is (or sought to become) a client; and
- The person to whom the communication was made:
- is a member of the bar of a court, or his subordinate, and
- in connection with this communication, is acting as an attorney; and
- The communication was for the purpose of securing legal advice.
There are a number of exceptions to the privilege in most jurisdictions, chief among them:
- the communication was made in the presence of individuals who were neither attorney nor client, or disclosed to such individuals,
- the communication was made for the purpose of committing a crime or tort,
- the client has waived the privilege, for example by publicly disclosing the communication.
A corollary to the attorney–client privilege is the joint defense privilege
Joint defense privilege
The joint defense privilege, or common-interest rule, is an extension of the attorney-client privilege. Under “common interest” or “joint defense” doctrine, parties with shared interest in actual or potential litigation against common adversary may share privileged information without waiving...
, which is also called the common interest rule. The common interest rule "serves to protect the confidentiality of communications passing from one party to another party where a joint defense or strategy has been decided upon and undertaken by the parties and their respective counsel."
An attorney speaking publicly in regard to a client's personal business and private affairs can be reprimanded by the bar and/or disbarred, regardless of the fact that he or she may be no longer representing the client. Airing of a client's or past client's dirty laundry is viewed as a breach of fiduciary responsibilities.
The attorney–client privilege is separate from and should not be confused with the work-product doctrine.
When the privilege may not apply
When an attorney is not acting primarily as an attorney but, for instance, as a business advisor, member of the Board of Directors, or in another non-legal role, then the privilege generally does not apply. Accordingly, the attorney–client privilege is probably not available when an attorney is acting as a tax return preparer. Tax preparation is a service intended to result in disclosure to the Internal Revenue Service and some United States courts have held that the work papers and discussions with clients relative to the preparation of tax returns are not protected.The privilege protects the confidential communication, and not the underlying information. For instance, if a client has previously disclosed confidential information to a third party who is not an attorney, and then gives the same information to an attorney, the attorney–client privilege will still protect the communication to the attorney, but will not protect the communication with the third party.
The privilege may be waived if the confidential communications are disclosed to third parties.
Other limits to the privilege may apply depending on the situation being adjudicated.
Disclosure to prevent a crime, tort, or fraud
The crime-fraud exception can render the privilege moot when communications between an attorney and client are themselves used to further a crime, tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
, or fraud. In Clark v. United States, the US Supreme Court writes that "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." The crime-fraud exception also does require that the crime or fraud discussed between client and attorney be carried out to be triggered. US Courts have not yet conclusively ruled how little knowledge an attorney can have of the underlying crime or fraud before the privilege detaches and the attorney's communications or requisite testimony become admissible.
If a Trustee secures counsel for the administration of a trust, the Trustee can not exclude the communication from the trust's Beneficiaries. The logic since the Beneficiaries are the principals of the Trustee who is simply acting as their agent in regard to the trust and the attorney client communication.
Disclosure ostensibly to support lawyer's own interests
Lawyers may disclose confidential information relating to the retainer where they are reasonably seeking to collect payment for services rendered. This is justified on policy grounds. If lawyers were unable to disclose such information, many would undertake legal work only where payment is made in advance. This would arguably adversely affect the public's access to justice.Lawyers may also breach the duty where they are defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a lawyer effectively waives rights to confidentiality. This is justified on grounds of procedural fairness - a lawyer unable to reveal information relating to the retainer would be unable to defend themselves against such actions.
Disclosure of information that is not confidential
Clearly, information that is not confidential does not fall under the duty of confidentiality. Disclosure of information that is already in the public domain does not breach the duty. Further, information that was not in the public knowledge at the time of the retainer agreement, is not subject to the duty if it subsequently enters the public domain. The purpose served by maintaining the confidence - the protection of the client - is arguably extinguished.Nonetheless, the lawyer still owes a duty of loyalty, and clients may feel betrayed if such information is disclosed, even if it becomes public knowledge. Though there are no legal ramifications for disclosure, discretion on part of the lawyer may be in the long term interests of maintaining the propriety of the legal profession.
Disclosure for the purpose of probate
Another case is for the probateProbate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
of a last will and testament. Previously confidential communications between the lawyer and testator
Testator
A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."-Related terms:...
are no longer secret for the purpose of proving the Will is the intent of the now deceased decedent. In many instances, the will, codicil
Codicil
Codicil can refer to:* Codicil : An addition made to a will* Any addition made subsequent and appended to the original* Any addition or appendix, such as a corollary to a theorem* Codicil : A poem by Derek Walcott...
, or other parts of the estate plan
Estate planning
Estate planning is the process of anticipating and arranging for the disposal of an estate. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses...
require explanation or interpretation through other proof (extrinsic evidence), such as the attorney's file notes or correspondence from the client.
In certain cases, the client may desire or consent to revelation of personal or family secrets only after his or her death; for example, the Will may leave a legacy
Legacy
-Comics:* Legacy , an alias used by Genis-Vell, better known as Captain Marvel* "Batman: Legacy", a 1996 Batman storyline* Star Wars: Legacy, a 2006 series from Dark Horse* X-Men: Legacy, a 1991 series from Marvel Comics...
to a paramour or a natural child.
Courts have occasionally revoked the privilege after the death of the client if it is deemed that doing so serves the client's intent, such as in the case of resolving testamentary disputes among heirs.
Privilege related to tax practice
In the United States, communications between accountants and their clients are usually not privileged. A person with aggressive tax strategies or who is worried about accusations of questionable accounting, such as tax evasionTax evasion
Tax evasion is the general term for efforts by individuals, corporations, trusts and other entities to evade taxes by illegal means. Tax evasion usually entails taxpayers deliberately misrepresenting or concealing the true state of their affairs to the tax authorities to reduce their tax liability,...
, may decide to work only with an attorney or only with an accountant who is also an attorney; some or all of the resulting communications may be privileged provided that all the requirements for the attorney–client privilege are met. The mere fact that the practitioner is an attorney will not create a valid attorney–client privilege with respect to a communication, for example, that involves business or accounting advice rather than legal advice.
Under Federal tax law in the United States, for communications on or after July 22, 1998, there is a limited Federally authorized tax practitioner privilege that may apply to certain communications with non-attorneys. See Accountant-client privilege
Accountant-client privilege
Accountant–client privilege is a confidentiality privilege, or more precisely, a group of privileges, available in American federal and state law. Accountant–client privileges may be classified in two categories: evidentiary privileges and non-evidentiary privileges.An evidentiary privilege is one...
.
In the federal courts
If a case arises in the federal court system, the federal court will apply Rule 501 of the Federal Rules of EvidenceFederal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....
to determine whether to apply the privilege law of the relevant state or federal common law. If the case is brought to the federal court under diversity jurisdiction
Diversity jurisdiction
In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are...
, the law of the relevant state will be used to apply the privilege. If the case involves a federal question, the federal court will apply the federal common law of attorney–client privilege; however, Rule 501 grants flexibility to the federal courts, allowing them to construe the privilege "in light of experience and reason."
See also
- Legal professional privilege: Common LawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
general concept and history. - Legal professional privilege (England & Wales)Legal professional privilege (England & Wales)In England and Wales, the principle of legal professional privilege has long been recognised by the common law. It is seen as a fundamental principle of justice, and grants a protection from disclosing evidence...
- Privilege (evidence)Privilege (evidence)An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding....
- ConfidentialityConfidentialityConfidentiality is an ethical principle associated with several professions . In ethics, and in law and alternative forms of legal resolution such as mediation, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to...
- Admissible evidenceAdmissible evidenceAdmissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding...
- Contract attorneyContract attorneyA contract attorney works on legal cases on a contract basis. Such work is generally of a temporary nature, often with no guaranteed employment term.A contract attorney is-Civil litigation:...
- Accountant-client privilegeAccountant-client privilegeAccountant–client privilege is a confidentiality privilege, or more precisely, a group of privileges, available in American federal and state law. Accountant–client privileges may be classified in two categories: evidentiary privileges and non-evidentiary privileges.An evidentiary privilege is one...
- Physician-patient privilegePhysician-patient privilegePhysician–patient privilege is a legal concept, related to medical confidentiality, that protects communications between a patient and his or her doctor from being used against the patient in court. It is a part of the rules of evidence in many common law jurisdictions...
- Priest-penitent privilegePriest-penitent privilegeThe priest–penitent privilege, also known as the clergy privilege, clergy–penitent privilege, confessional privilege, and ecclesiastical privilege, is an application of the principle of privileged communication that protects the contents of communications between a member of the clergy and a...
- Shield lawShield lawA shield law or reporters' privilege is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process.-Definition:...
s - Reporters' PrivilegeReporters' PrivilegeReporters' privilege in the United States, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources"...
- Spousal privilegeSpousal privilegeIn the law of the United States, the spousal privilege comprises two separate privileges, the marital confidences privilege and the spousal testimonial privilege....
- State Secrets PrivilegeState Secrets PrivilegeThe state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
- Public Interest ImmunityPublic Interest ImmunityPublic-interest immunity is a principle of English common law under which the English courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest...
- Upjohn v. United StatesUpjohn v. United StatesUpjohn Co. v. United States, 449 U.S. 383 , was a Supreme Court case in which the Court held that a company could invoke the attorney-client privilege to protect communications made between company lawyers and non-management employees...
- Swidler & Berlin v. United StatesSwidler & Berlin v. United StatesSwidler & Berlin v. United States, 524 U.S. 399 , was a case in which the Supreme Court of the United States held that the death of an attorney's client does not terminate the attorney-client privilege with respect to records of confidential communications between the attorney and the client that...
- Subpoena duces tecumSubpoena duces tecumA subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....
- Subpoena ad testificandumSubpoena ad testificandumA subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the Ecclesiastical Courts of the High Middle Ages, especially in England...
External links
- Federal Rule of Evidence 502 Resource Page Provides background and key links on the 2008 amendment "to address the waiver of the attorney–client privilege and the work product doctrine."
- Office of the General Counsel The Attorney-Client Privilege from Stanford UniversityStanford UniversityThe Leland Stanford Junior University, commonly referred to as Stanford University or Stanford, is a private research university on an campus located near Palo Alto, California. It is situated in the northwestern Santa Clara Valley on the San Francisco Peninsula, approximately northwest of San...