Attorney-Client Privilege

The attorney-client privilege is the oldest and most well-established evidentiary privilege in American law. It protects confidential communications made between a client (or prospective client) and an attorney (or the attorney's agents) for the purpose of seeking or providing legal advice. The privilege belongs to the client, who alone may waive it. The rationale is utilitarian: the legal system benefits when clients can communicate fully and frankly with their lawyers without fear that those communications will be disclosed, enabling lawyers to provide effective legal counsel.

The privilege has several essential elements. There must be a communication — oral, written, or otherwise — between a client and an attorney. The attorney must be acting in a legal capacity (not merely as a business advisor or friend). The communication must be made in confidence, meaning the client intended it not to be disclosed to third parties. And the communication must be for the purpose of seeking or providing legal advice. The privilege does not protect the underlying facts — a client cannot conceal facts from discovery merely by communicating them to a lawyer. It protects only the communication itself.

Important limitations and exceptions exist. The crime-fraud exception removes the privilege when the communication was made for the purpose of furthering a crime or fraud. Waiver can occur through voluntary disclosure to third parties, failure to assert the privilege, or inadvertent disclosure (subject to FRE 502's protections). The privilege generally survives the death of the client (Swidler & Berlin). In the corporate context, the Supreme Court in Upjohn rejected the narrow 'control group' test and held that the privilege extends to communications between corporate counsel and lower-level employees if made at the direction of corporate superiors for the purpose of obtaining legal advice.