---
title: "Attorney-Client Privilege in Litigation"
type: Legal Rule
source: https://casebriefly.com/legal-rules/attorney-client-privilege-in-litigation
---

# Attorney-Client Privilege in Litigation

The attorney-client privilege protects confidential communications between a client and attorney made for the purpose of obtaining or providing legal advice, and it can be asserted during discovery to shield those communications from disclosure.

## Definition

The attorney-client privilege is the oldest recognized privilege for confidential communications. It protects communications between a client and an attorney (or the attorney's agents) that are made in confidence for the purpose of seeking or providing legal advice. In the litigation context, the privilege operates primarily as a shield against discovery, allowing a party to refuse to disclose protected communications in response to interrogatories, document requests, or deposition questions.

The traditional elements of the privilege require: (1) a communication, (2) made between privileged persons (client and attorney or their agents), (3) in confidence, (4) for the purpose of seeking, obtaining, or providing legal assistance. The privilege belongs to the client, not the attorney, though the attorney has an obligation to assert it on the client's behalf. The privilege survives the termination of the attorney-client relationship and even the death of the client.

In the corporate context, the Supreme Court in Upjohn Co. v. United States (1981) rejected the narrow control group test and adopted a broader approach, holding that the privilege can cover communications between corporate counsel and lower-level employees when the communications are made at the direction of corporate superiors for the purpose of obtaining legal advice. The crime-fraud exception provides that the privilege does not protect communications made for the purpose of furthering a crime or fraud. Waiver occurs when the client voluntarily discloses the privileged communication to a third party, though Federal Rule of Evidence 502 provides protections against inadvertent waiver and limits the scope of subject matter waiver.

## Elements

- A communication between client and attorney (or their agents)
- Made in confidence with the expectation of confidentiality
- For the purpose of seeking, obtaining, or providing legal advice
- The privilege belongs to the client and can only be waived by the client
- The crime-fraud exception defeats the privilege for communications furthering a crime or fraud
- Voluntary disclosure to third parties generally waives the privilege

## Key Case

Upjohn Co. v. United States, 449 U.S. 383 (1981)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Upjohn Co. v. United States | 449 U.S. 383 (1981) | Rejected the control group test for corporate attorney-client privilege and held that communications between corporate counsel and lower-level employees can be privileged when made for the purpose of obtaining legal advice. |
| Swidler & Berlin v. United States | 524 U.S. 399 (1998) | Held that the attorney-client privilege survives the death of the client, reinforcing the importance of encouraging full and frank communication. |
| Clark v. United States | 289 U.S. 1 (1933) | Established the crime-fraud exception to the attorney-client privilege, holding that the privilege does not protect communications in furtherance of a crime or fraud. |
| In re Grand Jury Subpoena | 341 F.3d 331 (4th Cir. 2003) | Applied the crime-fraud exception in the corporate context, detailing the showing required to overcome the privilege. |

## Exam Tips

- Carefully distinguish between legal advice and business advice; the privilege only protects communications seeking or providing legal advice, not general business counsel.
- In corporate scenarios, identify who the client is (the corporation, not individual employees) and apply the Upjohn framework for employee communications.
- Watch for waiver issues: sharing privileged communications with third parties outside the attorney-client relationship generally waives the privilege, though FRE 502 provides some protection for inadvertent disclosures.
- The privilege protects the communication itself, not the underlying facts. A client cannot refuse to answer questions about facts merely because those facts were communicated to an attorney.

## Common Mistakes

- Confusing attorney-client privilege (which protects communications) with work product doctrine (which protects litigation preparation materials); they are separate doctrines.
- Assuming the privilege covers the underlying facts communicated to the attorney; only the communication is protected, not the facts themselves.
- Applying the control group test for corporate privilege, which was rejected by Upjohn in favor of a broader, case-by-case approach.

## Mnemonic Or Memory Aid

Privilege = Communication + Confidence + Legal purpose. Client owns it. Crime-fraud kills it. Facts underneath remain discoverable.

## Related Rules

- work-product-doctrine
- discovery-scope-rule-26
- sanctions-rule-11

---
Source: [Attorney-Client Privilege in Litigation — CaseBriefly](https://casebriefly.com/legal-rules/attorney-client-privilege-in-litigation)