§ 38.15 Key Points

JurisdictionUnited States
§ 38.15 Key Points

Professional responsibility distinguished. The attorney-client privilege should be distinguished from an attorney's obligations under the rules governing professional responsibility. Model Rule 1.6(a) states that lawyers "shall not reveal information relating to representation of a client," with limited exceptions. The attorney-client privilege is limited to communications, whereas the ethical rule covers all information obtained as a result of the representation. Moreover, an evidentiary privilege applies only in legal proceedings; the ethical rule applies outside legal proceedings.

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. The attorney may, however, claim the privilege on behalf of the client.

Professional Relationship Requirement

The attorney-client privilege applies only when the communication is made for the purpose of receiving legal services. It protects a client against disclosure of facts revealed in non-litigious as well as in litigious consultation. 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. If an attorney is consulted for reasons unrelated to legal services (e.g., as a friend or business advisor), the privilege does not apply.

Communications Defined

Generally, only the communication is covered and not the facts that are the subject of the communication. Stated another way, the communication, but not the client's knowledge, is protected by the privilege.

Documents. The privilege may encompass written communications between attorney and client—e.g., 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.

Client identity and 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. However, some courts extend the privilege's protection to the name and address of the client under certain circumstances—e.g., where the revelation of the identity of the client would reveal a confidential communication.

Physical evidence. A difficult problem arises when a client delivers tangible evidence to the attorney or provides the attorney with information necessary to...

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