§ 38.03 Holder

• Jurisdiction: United States

§ 38.03 Holder

The holder of the privilege is the client and not the attorney. Accordingly, only the client has the right to invoke and waive the privilege.¹⁴ The attorney may, however, claim the privilege on behalf of the client.¹⁵

A "corporation's attorney-client privilege may be waived by current management."¹⁶The Supreme Court has noted that "when control of a corporation passes to new management, the authority to assert and waive the corporation's attorney client privilege passes as well."¹⁷ Moreover, "a corporation may unilaterally waive the attorney-client privilege with respect to any communications made by a corporate officer in his corporate capacity, notwithstanding the existence of an individual attorney-client relationship between him and the corporation's counsel."¹⁸

If the holder is not a party and the trial court incorrectly breaches the privilege, the parties lack standing to appeal on the privilege issue (but not the holder in a separate action).¹⁹ If the judge excludes evidence based on the erroneous assertion of the privilege, a party who is not the holder may appeal on the grounds that relevant evidence was excluded—grounds that give that party standing.

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Notes:

^[14] See Hunt v. Blackburn, 128 U.S. 464, 470 (1888) ("But the privilege is that of the client alone, and no rule prohibits the latter from divulging his own secrets."); In re von Bulow, 828 F.2d 94, 100 (2d Cir. 1987) ("[T]he privilege belongs solely to the client and may only be waived by him. An attorney may not waive the privilege without his client's consent. Hence, absent a client's consent or waiver, the publication of confidential communications by an attorney does not constitute a relinquishment of the privilege by the client.") (citation omitted).

^[15] See Fisher v. United States, 425 U.S. 391, 402 n. 8 (1976) ("The only privilege of the taxpayer involved here is the attorney-client privilege, and it is universally accepted that the attorney-client privilege may be raised by the attorney.").

^[16] In re Grand Jury Subpoena, 274 F.3d 563, 571 (1st Cir. 2001).

^[17] CFTC v. Weintraub, 471 U.S. 343, 349 (1985).

^[18] In re Grand Jury Subpoena, 274 F.3d 563, 573 (1st Cir. 2001).

^[19] See supra § 37.05[B] (discussing appeals).