§38.01 INTRODUCTION

• Jurisdiction: North Carolina

§38.01. INTRODUCTION

The attorney-client privilege is "the oldest of the privileges for confidential communications known to the common law."¹ A separate qualified privilege for work-product has also been recognized.²

The attorney-client privilege is intended to permit clients to receive informed legal advice and effective representation, which depends on "full and frank communication between attorneys and their clients."³ This, in turn, is thought to "promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client."⁴ In criminal cases, the Sixth Amendment right to the effective assistance of counsel also supports the privilege.⁵

The privilege has inspired detractors,⁶ who ask: What would happen without the privilege? Would clients really cease talking to their attorneys? Would attorneys preface all remarks with "hypothetically speaking"? Would opposing parties call the other side's lawyer as their first witness?

As with all confidential communication privileges, the issues can be divided into the following components: (1) Who are the proper parties (e.g., who is a client and who is an attorney?); (2) What constitutes a communication?; (3) Was the communication made incident to the professional relationship?; (4) Was the communication intended to be confidential?; (5) What are the exceptions?; and (6) How is the privilege waived? This last question requires us to identify the "holder" of the privilege.

As drafted by the Advisory Committee, proposed Federal Rule 503 recognized the attorney-client privilege.⁷ However, Congress deleted all the proposed privilege rules when it substituted the general federal rule on privileges (Rule 501).⁸ Thus, the attorney-client privilege in federal practice is a common law rule,⁹ with the exception of Rule 502, which governs waiver issues. In many states, the privilege is statutory. As with other privileges, there is significant variation in different jurisdictions.¹⁰

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Notes:

^[1] Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). See also Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) ("The attorney-client privilege is one of the oldest recognized privileges for confidential communications."); Rice, Attorney-Client Privilege in the United States (1999); Hazard, An Historical Perspective on the...