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

# Attorney-Client Privilege

The attorney-client privilege protects confidential communications between a client and their attorney made for the purpose of obtaining or providing legal advice. It is the oldest recognized privilege and belongs to the client, not the attorney.

## Definition

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.

## Elements

- A communication exists (oral, written, or otherwise)
- The communication is between a client (or prospective client) and an attorney (or attorney's agent)
- The attorney is acting in a professional legal capacity
- The communication was made in confidence (intended to be kept from third parties)
- The purpose of the communication is to seek or provide legal advice
- The privilege has not been waived (by voluntary disclosure, failure to assert, or crime-fraud exception)

## 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, extending the privilege to communications between corporate counsel and lower-level employees 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 policy of encouraging full and frank communication. |
| Clark v. United States | 289 U.S. 1 (1933) | Established the crime-fraud exception: the privilege does not apply when the client consults the attorney for the purpose of committing or furthering a crime or fraud. |
| In re Grand Jury Subpoena | 341 F.3d 331 (4th Cir. 2003) | Addressed the scope of the crime-fraud exception, discussing the prima facie showing required to overcome the privilege. |

## Exam Tips

- Distinguish the privilege (protects communications) from work product doctrine (protects attorney's mental impressions, conclusions, and trial preparation materials) — they are separate protections with different requirements.
- The privilege protects communications, not facts. A client cannot refuse to disclose a fact in deposition merely because they told their lawyer about it.
- Always check for waiver — voluntary disclosure to a third party generally waives the privilege, though FRE 502 provides protections against inadvertent disclosure.
- In the corporate context, remember Upjohn: the privilege extends beyond the 'control group' to any employee communicating with counsel at the direction of superiors for legal advice purposes.

## Common Mistakes

- Confusing the attorney-client privilege with work product protection — the privilege covers client-attorney communications; work product covers the attorney's litigation preparation materials.
- Believing that the privilege protects underlying facts communicated to the lawyer — it protects only the communication itself, not the facts.
- Assuming the privilege applies to all communications with a lawyer — the attorney must be acting in a legal capacity and the communication must be for the purpose of legal advice.

## Mnemonic Or Memory Aid

The privilege protects the 'conversation,' not the 'content' — you can be asked what happened, just not what you told your lawyer about what happened.

## Related Rules

- spousal-privilege
- physician-patient-privilege
- impeachment-methods

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