Attorney-Client Privilege

Author:Jeffrey Lehman, Shirelle Phelps

Page 392

In the law of evidence, a client's privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it. In federal courts, state law is applied with respect to such privilege.

The attorney-client privilege encourages clients to disclose to their attorneys all pertinent information in legal matters by protecting such disclosures from discovery at trial. The privileged information, held strictly between the attorney and the client, may remain private as long as a court does not force disclosure. The privilege does not apply to communications between an attorney and a client that are made in furtherance of a FRAUD or other crime. The responsibility for designating which information should remain confidential rests with the client. In its most common use, however, the attorney claims the privilege on behalf of the client in refusing to disclose to the court, or to any other party, requested information about the client's case.

As a basic construction in the judicial system, the privilege is an ancient device. It can be found even in Roman law?for example, Marcus Tullius Cicero, while prosecuting the governor of Sicily, could not call the governor's advocate as a witness, because if he were to have done so, the governor would have lost confidence in his own defender. Over the years, the close tie between attorney and client developed further with reforms in English COMMON LAW.

Because the attorney-client privilege often balances competing interests, it defies a rigid definition. However, one often-cited characterization was set forth in United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950). The court articulated five requirements: first, the person asserting the privilege must be a client, or must have sought to become a client at the time of disclosure; second, the person connected to the communication must be acting as a lawyer; third, the communication must be between the lawyer and the client exclusively?no non-clients may be included in the communication; fourth, the communication must have occurred for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime; fifth, the privilege may be claimed or waived by the client only (usually, as stated above, through counsel).

Sometimes, even when all five of the United Shoe requirements have been met, courts will compel disclosure of the information sought. They base exceptions to the privilege on Rule 501 of the FEDERAL RULES OF EVIDENCE, which states that "the recognition of a privilege based on a confidential relationship ? should be determined on a case-by-case basis." Courts weigh the benefits to be gained by upholding the privilege (that is, preserving the...

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