§ 38.03 HOLDER

JurisdictionNorth Carolina

§ 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 manage-ment."16 The 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.



[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). See also State v. Doe, 803 N.E.2d 777 (Ohio 2004) ("In the event of the death of a client, R.C. 2317.02(A) authorizes the surviving spouse of that client to waive the attorney-client privilege protecting communications between the deceased spouse and attorneys who had represented that deceased spouse.").

[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...

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