§ 38.06 CONFIDENTIALITY REQUIREMENT

• Jurisdiction: United States

§ 38.06. CONFIDENTIALITY REQUIREMENT

The attorney-client privilege covers only confidential communications.⁴⁷ Thus, where the information communicated is intended to become public, the privilege is inapplicable.⁴⁸ Similarly, information concerning a defendant's obligation to appear for trial or sentencing is not "of a confidential nature" and thus not covered by the privilege.⁴⁹

[A] Presence of Third-parties

The privilege does not apply when the client's actions are inconsistent with an intention of confidentiality — for example, if the communication is made in the presence of a third person.⁵⁰ The presence of outsiders indicates that confidentiality was not intended. Confidentiality will be considered preserved, however, where the third person is assisting in the legal consultation, such as the case with legal secretaries, investigators, and paralegal assistants.⁵¹ In some cases the privilege is retained when a spouse, parent, or business associate is present.⁵²

[B] Eavesdroppers

As long as the client did not know of the presence of an eavesdropper when the communication took place, and the client took reasonable steps to preserve confidentiality, the privilege remains and the eavesdropper may be prohibited from testifying about what was overheard.⁵³

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Notes:

^[47] See Upjohn, 449 U.S. at 395 ("[T]he communications were considered 'highly confidential' when made . . . and have been kept confidential by the company."); United States v. Trammel, 445 U.S. 40, 51 (1980) ("The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications."). Some jurisdictions recognize a presumption of confidentiality. See Cal. Evid. Code § 917(a) ("communications made in the course of an attorney-client relationship are presumed confidential").

^[48] See United States v. Ruehle, 583 F.3d 600, 611 (9th Cir. 2009) ("The salient point from a privilege perspective is that Ruehle readily admits his understanding that all factual information would be communicated to third parties, which undermines his claim of confidentiality to support invoking the privilege."); Proposed Fed. R. Evid. 503 advisory committee's note ("A communication made in public or meant to be relayed to outsiders or which is divulged by the client to third persons can scarcely be considered confidential. The intent is inferable from the circumstances. Unless intent to disclose is apparent, the attorney-client communication is confidential...