Attorney-Client Privilege

The attorney-client privilege allows a client, and requires the client’s attorney, to protect communications made in confidence relating to legal advice sought by the client from a lawyer in the lawyer’s professional capacity. ^[1]United States v. International Brotherhood of Teamsters, 119 F.3d 210, 214 (2d Cir. 1997); In re Grand Jury Subpeona Duces Tacum Dated Sept. 15, 1983, 7731 F.2d 1032, 1036 (2d Cir. 1984). Communications between a client and attorney are not protected when the communications occur in the presence of a third party or when the client reports of the substance of the communication to a third party or voluntarily provides documents or tapes to a third party.

The privilege is the client’s privilege, not the attorney’s, though an attorney can assert the privilege on behalf of the client. The privilege does not protect an attorney’s interests from disclosure. 

The attorney-client privilege is acknowledged as being the oldest privilege in American Common Law to protect client communications.^[2]Upjohn Company, et al. v. United States, et al., 101 S.Ct. 677, 449 U.S. 383 (1981), (“The attorney–client privilege is the oldest of the privileges for confidential communications known to the … Continue reading.)) Though there are exceptions to the privilege, as discussed below, no serious challenges against the common-law privilege are or have been at issue. Any assertion that the attorney-client privilege is at legal risk plainly misstates the doctrine and concept.

The attorney-client privilege, however, does not protect from disclosure the identity and nature of the communication. Indeed, it is routine in modern litigation that such communication be turned over to a court issuing a subpoena for otherwise privileged communications so that the court can determine whether the communications are protected under the privilege.^[3]See, e.g., Federal Rule of Civil Procedure 45(e). Failure to comply can subject a party to an order of contempt.^[4]See Federal Rule of Civil Procedure 45(g). In complex cases in which there is a large body of documents, the court may appoint a Master to oversee and confidentially review otherwise privileged documents and things in order to determine whether documents should be allowed to be disclosed.

As with any right or privilege, the protection of the attorney-client privilege is not absolute and is subject to various exceptions, among them being: 1) The crime fraud exception in circumstances when the privilege conceals a fraud or a crime or intent to commit the same;^[5]See, e.g., United States v. Zolin, 109 S.Ct. 2619, 491 U.S. 554 (1989). 2) the fiduciary exception in situations such as benefit plans that manage fund assets;^[6]See, e.g., Solis, et al. v. Food Employers Labor Relations Association, et al., 644 F.3d 221 (2011). and 3) the lawyer interest exception for circumstances when an attorney sues a client for a fee or when a client makes a disciplinary complaint against an attorney.^[7]See, e.g., Kalyawongsa, et al. v. Moffett, et al., 105 F.3d 283.

If there is not an attorney-client relationship, it is axiomatic that there can be no attorney-client privilege. However, an attorney-client privilege can exist without an attorney being formally retained and paid such as when an attorney offers a free consultation to prospective clients. Even though a person may choose not to hire such an attorney or the attorney chooses not to take a prospective client in a consultation, an attorney-client relationship may exist for communications within that free consultation. The same principle applies when attorneys perform pro bono^[8]Free legal work for the public good. work and are not paid for it.

© 2022 Ralph D. Davis