Etymology & Origins: From Latin 'privilegium' meaning 'a law affecting an individual,' from 'privus' (private) + 'lex' (law). Originally referred to a special legal right granted to a specific person.
When a question or document request intrudes upon privileged communications, the holder of the privilege (or counsel on their behalf) asserts the privilege as a basis for refusing to answer or produce documents. The burden is on the party claiming privilege to establish that the communication falls within the privilege's scope. In discovery, parties produce privilege logs identifying documents withheld on privilege grounds. Courts conduct in camera review when privilege claims are disputed. Importantly, privilege can be waived by voluntary disclosure to third parties or by failing to take reasonable steps to prevent disclosure. The crime-fraud exception defeats attorney-client privilege when the communication was made to further a crime or fraud.
Attorney: "I instruct my client not to answer that question on the basis of attorney-client privilege. The question seeks disclosure of a confidential communication between counsel and client made for the purpose of obtaining legal advice."
Judge: "The crime-fraud exception applies here. The evidence shows the defendant consulted his attorney specifically to facilitate the fraudulent transfer of assets. The privilege does not protect communications in furtherance of a crime."
Opposing Counsel: "Your Honor, the privilege has been waived. The defendant disclosed the substance of this communication to a third-party business partner who had no role in the legal representation."
Students frequently confuse privilege with the work-product doctrine. Privilege protects communications between attorney and client; work-product protects materials prepared in anticipation of litigation. They have different scopes, different exceptions, and different waiver rules.
Attorney-client privilege and spousal privilege vary substantially between federal and state courts. Federal courts apply common-law privilege rules under FRE 501, while many states have codified specific privileges (e.g., journalist shield laws) that have no federal equivalent.
Upjohn Co. v. United States, 449 U.S. 383 (1981)
Rejected the narrow "control group" test for corporate attorney-client privilege, holding that communications between corporate counsel and lower-level employees are protected when made for the purpose of obtaining legal advice.
Swidler & Berlin v. United States, 524 U.S. 399 (1998)
Held that attorney-client privilege survives the death of the client, rejecting the argument that a deceased client's communications should be disclosed in a criminal investigation.
Clark v. United States, 289 U.S. 1 (1933)
Established the crime-fraud exception to attorney-client privilege, holding that the privilege does not extend to communications made in furtherance of a crime or fraud.
| Attorney-Client Privilege | Work Product Doctrine |
|---|---|
| Protects confidential communications | Protects litigation preparation materials |
| Applies only to attorney-client communications | Applies to materials prepared by or for attorney |
| Absolute protection (with narrow exceptions) | Qualified protection for ordinary work product |
| Waived by disclosure to any third party | Not waived by disclosure to non-adversaries |
| Crime-fraud exception | Substantial need + undue hardship can overcome |
| Belongs to the client | Belongs to the attorney |
What are the elements of attorney-client privilege?
Attorney-client privilege requires: (1) a communication, (2) made between privileged persons (attorney and client), (3) in confidence, (4) for the purpose of obtaining or providing legal assistance. All four elements must be present, and the privilege belongs to the client, who alone can waive it.
How is attorney-client privilege waived?
Privilege is waived by voluntary disclosure of the communication to a third party outside the privilege, by failing to assert the privilege in a timely manner, or by placing the communication at issue (such as raising an advice-of-counsel defense). Inadvertent disclosure may or may not waive privilege depending on the steps taken to prevent and rectify the disclosure.
What is the crime-fraud exception to attorney-client privilege?
The crime-fraud exception provides that attorney-client privilege does not protect communications made for the purpose of planning or committing a crime or fraud. The party seeking to invoke the exception must make a prima facie showing that the client was engaged in or planning criminal or fraudulent activity and that the communication furthered that activity.
Does attorney-client privilege survive the client's death?
Yes, attorney-client privilege generally survives the death of the client. The Supreme Court confirmed this in Swidler & Berlin v. United States (1998), holding that the privilege continues after death to encourage full and frank communication during the attorney-client relationship.
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