§ 38.04 PROFESSIONAL RELATIONSHIP REQUIREMENT

• Jurisdiction: North Carolina

§ 38.04. PROFESSIONAL RELATIONSHIP REQUIREMENT

The attorney-client privilege applies only where the communication is made for the purpose of receiving legal services.²⁰ It protects a client against disclosure of facts revealed in non-litigious as well as in litigious consultation²¹ — e.g., in preparing a contract or will. Similarly, it encompasses "a factual investigation in connection with the provision of legal services."²² The privilege extends to communications made to an attorney by a person seeking legal services, even if the attorney decides not to represent that person.²³ It applies to attorneys serving pro bono as well as to in-house counsel.

If an attorney is consulted for reasons unrelated to legal services (e.g., as a friend or business advisor), the privilege is inapplicable.²⁴ For instance, it does not extend to lobbying the President for pardons.²⁵ The person asserting the privilege has the burden of establishing that the client consulted the attorney for legal services.²⁶

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Notes:

^[20] See Upjohn, 449 U.S. at 393 ("The communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel."); In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984) (privilege applies only if the person to whom the communication was made is "a member of the bar of a court" who "in connection with th[e] communication is acting as a lawyer" and the communication was made "for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding") (quoting United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950)); Proposed Fed. R. Evid. 503 advisory committee's note ("All these communications must be specifically for the purpose of obtaining legal services for the client; otherwise the privilege does not attach.").

^[21] See Swidler & Berlin, 524 U.S. at 407-08 ("Clients consult attorneys for a wide variety of reasons. . . . Many attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed in order to assure sound legal advice. The same is true of owners of small businesses who may regularly consult their attorneys about a variety of problems arising in the course of the business."); Proposed Fed. R. Evid. 503 advisory committee's note ("The...