26.2 - A. General Principles
Jurisdiction | New York |
A. General Principles
In its simplest form, attorney-client privilege is defined as the “client’s right to refuse to disclose and to prevent any person from disclosing confidential communications between the client and the attorney.”3671 The specific elements of the privilege vary by jurisdiction. However, most recognize some variation on the following:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. 3672
While the privilege is a child of the common law, several states have codified it. New York codified it in N.Y. Civil Practice Law & Rules 4503 (CPLR).3673 In California, where all...
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- 26.0 - I. Introduction
- 26.1 - II. Background Of The Attorney-Client Privilege
- 26.2 - A. General Principles
- 26.3 - B. Attorney-Client Privilege And Rules Of Professional Responsibility
- 26.4 - C. Exceptions To The Attorney-Client Privilege
- 26.5 - 1. At Issue Waiver
- 26.6 - 2. Inadvertent Disclosure
- 26.7 - 3. Public Policy Exceptions
- 26.8 - 4. Crime-Fraud Exception
- 26.9 - D. The Privilege And Third Parties
- 26.10 - 1. Legal Staff
- 26.11 - 2. Other Professionals
- 26.12 - 3. Common Interest Doctrine
- 26.13 - III. Attorney-Client Privilege For Corporate In-House Counsel
- 26.14 - A. Overview
- 26.15 - B. Important Differences
- 26.16 - C. The Attorney-Client Privilege And The Upjohn Decision
- 26.17 - 1. Corporate Privilege Tests
- 26.18 - 2. Upjohn Decision
- 26.19 - 3. The Upjohn Warning
- 26.20 - 4. Upjohn And Practical Challenges
- 26.21 - 5. Upjohn And The States
- 26.22 - D. Attorney-Client Privilege And Attorney Directors
- 26.23 - 1. Requirement To Notify Board
- 26.24 - 2. Other Exceptions To The Privilege
- 26.25 - 3. Differentiation Of Roles Between Attorney And Director
- 26.26 - E. Duty To Report
- 26.27 - IV. The Attorney Work Product Doctrine
- 26.28 - A. Overview
- 26.29 - B. Policy Considerations
- 26.30 - C. Exceptions To Attorney Work Product
- 26.31 - 1. “In The Regular Course Of Business”
- 26.32 - 2. “Substantial Need”
- 26.33 - V. Conclusio
- Appendix
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