confidential communication

Attorney-client privilege is a legal concept that protects communications between a client and his or her attorney and keeps those communications confidential.

The policy underlying this privilege is that of encouraging open and honest communication between clients and attorneys, which is thought to promote obedience to law and reduce the chance of illegal behavior, whether intentional or inadvertent. As such, the attorney-client privilege is considered as one of the strongest privileges available under law.

In the United States, not all state courts treat attorney communications as privileged. For example:

  • Washington state law, and the federal courts when applying federal law, only protect client communications—an attorney's communication will only be protected as privileged to the extent it contains or reveals the client's communications.
  • In contrast, California state law protects the attorney's confidential communications only pertaining to the subject of communications in direct relation to a pending legal proceeding.
  • California Professional Ethical Rules for attorneys have a more expansive interpretation of confidentiality, and this confidence includes ALL communications with a client that is reasonably foreseeable to lead to the discovery of confidential communications, whether directly in relation to representation.

Certain exceptions to the privilege allow for the disclosure of confidential information by attorneys, such as if the attorney reasonably believes the disclosure is necessary to prevent a crime that will likely result in death or serious bodily injury, instances where the attorney must defend himself from accusations of negligent representation or completion of services for receipt of a fee, and where the court would otherwise subpoena the attorneys disclosure in the interests of justice.

In regards to the attorney client privilege as applied to legal representation in pending judicial claims and defenses, the privilege generally does not terminate upon the client's death and continues on into perpetuity.

General requirements under United States law

The general requirements for a valid assertion of attorney-client privilege in many jurisdictions in the United States are:

  1. The asserted holder of the privilege is (or sought to become) a client; and
  2. The person to whom the communication was made:
    1. is a member of the bar of a court, or his subordinate, and
    2. in connection with this communication, is acting as an attorney; and
  3. The communication relates to a fact of which the attorney was informed:
    1. by his client,
    2. without the presence of strangers,
    3. for the purpose of securing primarily either:
      1. an opinion on law, or
      2. legal services, or
      3. assistance in some legal proceeding,
    4. and not for the purpose of committing a crime or tort; and
  4. The privilege has been claimed, and
  5. The privilege has not been waived.

The attorney-client privilege is separate from and should not be confused with the work-product doctrine. An attorney speaking publicly in regard to a client's personal business and private affairs can be reprimanded by the ABA and/or disbarred, regardless of the fact that he or she may be no longer representing the client. Airing of a client's or past client's dirty laundry is viewed as a breach of fiduciary responsibilities.

When the privilege may not apply

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. Accordingly, the attorney-client privilege is probably not available when an attorney is acting as a tax return preparer. Tax preparation is a service intended to result in disclosure to the Internal Revenue Service and some United States courts have held that the work papers and discussions with clients relative to the preparation of tax returns are not protected.

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; for instance, the crime-fraud exception can render the privilege moot when communications between an attorney and client are themselves used to further a crime or fraud. In Clark v. United States, the US Supreme Court writes 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 not require that the crime or fraud discussed between client and attorney be completed 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.

If a Trustee secures counsel for the administration of a trust, the Trustee can not exclude the communication from the trusts Beneficiaries. The logic since the Beneficiaries are the principals of the Trustee who is simply acting as their agent in regard to the trust and the attorney client communication.

Privilege related to Tax Obligations

In the United States, communications between accountants and their clients are usually not privileged. However, client privilege has recently been extended to accountants who are also Certified Public Accountants. A person with aggressive tax strategies, or who is worried about accusations of questionable accounting, such as tax evasion, may decide to work only with an attorney or an accountant who is also an attorney); some or all of the resulting communications may be privileged provided that all the requirements for the attorney-client privilege are met. The mere fact that the practitioner is an attorney will not create a valid attorney-client privilege with respect to a communication, for example, that involves business or accounting advice rather than legal advice.

Under Federal tax law in the United States, for communications on or after July 22, 1998, there is a limited Federally authorized tax practitioner privilege that may apply to certain communications with non-attorneys. See Accountant-client privilege.

In the Federal Courts

If a case arises in the federal court system, the federal court will apply Rule 501 of the Federal Rules of Evidence to determine whether to apply the privilege law of the relevant state or federal common law. If the case is brought to the federal court under diversity jurisdiction, the law of the relevant state will be used to apply the privilege. If the case involves a federal question, the federal court will apply the federal common law of attorney-client privilege. However, Rule 501 grants flexibility to the federal courts, allowing them to construe the privilege "in light of experience and reason."


See also

External links

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