Attorney-Client Privilege
Protects confidential communications between an attorney and client made for the purpose of seeking or providing legal advice from compelled disclosure.
Elements / Test
Six elements (Federal common law):
- Attorney-client relationship — formal or prospective
- Communication — oral or written
- Confidential — not intended to be disclosed to third parties; shared with necessary intermediaries (agents) does not waive
- Made for purpose of seeking or rendering legal advice (not business advice, public relations)
- Holder is the client — only client can assert or waive
- Not waived — voluntary disclosure to a non-necessary third party waives privilege
Corporate context — Upjohn v. United States “subject matter test”:
- Extends to communications by employees at any level about matters within the scope of their employment duties
- (Rejected narrower Hickman “control group” test)
Exceptions and Edge Cases
- Crime-fraud exception: Privilege does not protect communications made in furtherance of ongoing or future crime or fraud; past crimes are protected
- Death of client: Privilege survives client’s death — Swidler & Berlin v. United States (Vincent Foster notes)
- Fiduciary exception: Some jurisdictions allow beneficiaries of trusts/estates to pierce privilege in disputes with trustees/executors
- Joint defense privilege: Co-defendants sharing counsel; each can assert, but communications not protected from each other after relationship ends
- Work product vs. privilege: Attorney-client protects communications; work product (Rule 26(b)(3)) protects attorney’s mental impressions regardless of client communication
- Waiver by disclosure: Subject matter waiver — disclosure of part of privileged communication may waive rest of that communication
Policy Rationale
Promotes candid communication between attorney and client, enabling effective legal advice and representation. Without assurance of confidentiality, clients would withhold information essential to proper legal service.
Key Cases
| Case | Rule |
|---|---|
| Upjohn Co. v. United States (1981) | Subject matter test for corporate attorney-client privilege; all employees covered |
| Swidler & Berlin v. United States (1998) | Privilege survives client’s death |
| In re Grand Jury Subpoena | Crime-fraud exception pierces privilege for communications facilitating ongoing crime |
| Hickman v. Taylor (1947) | Work product doctrine (related but distinct from attorney-client privilege) |