§ 38.05 Communications Defined

• Jurisdiction: United States

§ 38.05 Communications Defined

Generally, only the communication is covered, and not the facts that are the subject of the communication.²⁷ For example, a client who has been involved in a traffic accident may be required to testify about that accident but not about what that client told her attorney concerning the accident. Stated another way, the communication, but not the client's knowledge, is protected by the privilege.²⁸ Communications by the attorney to the client are probably covered as a practical matter, although there is some dispute on this issue.²⁹ Sometimes attorneys are called to testify about non-communicative facts that may adversely affect their clients.³⁰

In some cases, the "privilege protects, not merely the contents of communications between a client and counsel, but the fact that communications did or did not take place. The privilege also protects the timing of such communications."³¹

[A] Documents

The privilege may encompass written communications between attorney and client—e.g., a letter containing a legal opinion about a proposed course of conduct. However, pre-existing documents do not become privileged merely because they are transmitted to an attorney.³² For example, if a client consults a lawyer for advice on tax matters and gives financial records to the lawyer, those records, which existed prior to the consultation, are not privileged. In contrast, the attorney's legal advice based on those records is protected.

[B] Client Identity; Fee Arrangements

Generally, a client's identity, the fact of consultation with or employment of an attorney, and fee arrangements do not fall within the protection of the attorney-client privilege.³³ Such information is not usually intended to be confidential, and in most instances, the client's name or identity is not one of the facts about which the client seeks legal assistance.

However, some courts extend the privilege's protection to the name and address of the client under certain circumstances.³⁴ Such information is privileged if "the revelation of the identity of the client along with information regarding the fee arrangement would reveal a confidential communication between attorney and client."³⁵ These cases often seem questionable. Many involve attempts by clients to manipulate the legal system in some way.

Other cases tie the privilege to whether disclosure of the client's identity would provide the "last link" in the incrimination of the client.³⁶ This rationale, however, has little to do with the policies underlying the attorney-client privilege—encouraging communications.³⁷

[C] Physical Evidence

A difficult problem arises when a client delivers tangible evidence to the attorney or provides the attorney with information necessary to retrieve the evidence.³⁸ Here, the privilege applies to the communication itself. The attorney may not, however, take possession and hide the evidence;³⁹ this would amount to an obstruction of justice. Nor, for the same reason, may the attorney tell the client to destroy the evidence.⁴⁰

Once the attorney takes possession, some decisions hold that the evidence must be turned over to the prosecution.⁴¹ A further question arises because the prosecution will often have difficulty authenticating the evidence at trial. Without the means to authenticate, the item loses its probative value.⁴² Thus, authentication should be permitted.⁴³ In lieu of the attorney's testimony, a stipulation could be used to authenticate the evidence.

[D] Attorney's Impressions of Client

Because the attorney-client privilege protects only confidential communications, some courts hold that a lawyer's opinions and impressions of a former client's mental competency to stand trial fall outside the privilege if they do not reveal the substance of the communications.⁴⁴

In contrast, other courts hold that disclosure of even non-verbal communications violates the privilege.⁴⁵ It is difficult, or nearly impossible, according to these courts, for an attorney to testify regarding a client's competency without violating the privilege. Moreover, if called by the prosecution, the former attorney could be asked for the factual data upon which her opinion is based. One...