Attorney–client privilege

Attorney–client privilege or lawyer–client privilege is a "client's right privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."

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.

Although there are minor variations, the elements necessary to establish the attorney client privilege generally are:

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. Discussing a client's or past client's criminal history, or otherwise, 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 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.

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.

The crime-fraud exception can render the privilege moot when communications between an attorney and client are themselves used to further a crime, tort, or fraud. In Clark v. United States, the US Supreme Court stated 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.

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Wikipedia