CHAPTER §12.02 The Attorney-Client Privilege
| Jurisdiction | United States |
§12.02 The Attorney-Client Privilege
[1] Scope of the Attorney-Client Privilege
According to the United States Supreme Court, the purpose of the attorney-client privilege "is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."1 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."2 In sum, the purpose of the attorney-client privilege is to protect the confidential nature of communications between the client and the attorney.3 Although the exact formulation of the privilege may vary depending upon the particular jurisdiction,4 in federal court the elements of the attorney-client privilege are generally described as follows:
(1) the communication must be between a client, a client's representative, or one seeking to become a client and
(2) an attorney acting in the capacity as a lawyer or an attorney's agent
(3) for the purpose of seeking legal advice
(4) where there is an expectation of confidentiality, and
(5) where the privilege has not been waived.5
In most jurisdictions, the attorney-client privilege protects communications from the attorney to the client regardless of who initiated the communication.6 The privilege may protect unsolicited advice from an attorney to a client.7 Some jurisdictions, however, limit the privilege to protect communications from the attorney only when they would disclose, directly or by implication, the information communicated to the lawyer by the client.8
[2] Legal Advice Versus Business Advice
The attorney-client privilege applies to communications between the corporation and in-house counsel made for the purpose of obtaining legal advice.9 Since the privilege does not protect business advice,10 those in-house counsel who often perform multiple functions during their day-to-day activities may be required to establish in a particular instance that they were providing legal rather than business advice.11
In determining whether the attorney was providing legal or business advice, courts will often examine whether the attorney was performing tasks generally performed by an attorney. A number of courts apply what is known as a "predominant-purpose" or "primary-purpose" test, which looks at whether the predominant or primary purpose of the communication was to provide legal or business advice.12 Under this test, the communication will be protected if its predominant purpose was to provide legal advice, even if business advice was also provided.13 Some courts have interpreted the predominant purpose test in an overly strict manner, and have found that the attorney-client privilege exists only when the sole purpose of the communication was to provide or obtain legal advice.14 Other courts apply a presumption of privilege if the advice is given by an attorney in the general counsel's office.15
Some courts have found that unnecessarily broad dissemination of a communication may be considered in assessing whether the communication is privileged.16 However, in the landmark Upjohn case, the U.S. Supreme Court found that broad dissemination may be appropriate in certain instances and compatible with the priv-ilege.17 Moreover, at least one court has stated that the author of the document is entitled to determine who should be a recipient of the communication, and the court should not review the "business judgment" of the corporate official, so long as the dissemination of the communication was limited to specific individuals whose corporate duties related generally to the contents of the documents.18
[3] Communications Versus Underlying Facts
The attorney-client privilege protects a communication, even if the underlying facts are otherwise discoverable.19 Stated differently, the privilege covers the entire communication, if the communication is made for the purpose of obtaining legal advice, including those portions of the communication that contain facts that may be discoverable through other means.20
[4] Communications That Are Not Covered by the Attorney-Client Privilege
A non-privileged document generally does not become privileged just because it is sent to an attorney.21 In certain circumstances, however, the work-product doctrine may protect non-privileged documents if they reveal, for example, attorney selection.22
Likewise, communications such as transmittal letters, acknowledgments of receipt, and cover letters may not be covered by the privilege, if they do not contain legal advice or a request for legal advice.23 Of course, the content of the transmittal or cover letter will determine whether it is privileged. A cover letter that merely reads "please see attached" may not contain a privileged communication. But, one that asks, "Do I have a legal problem here?" and attaches to it the facts upon which the request for legal advice is based, is likely to be found to be a privileged communication.
[a] Engagement Letters and Invoices
Generally, the attorney-client privilege does not protect counsel's identity or the amount paid to counsel.24 Accordingly, information concerning the retention of counsel, such as the general terms of employment, the general purpose for retaining counsel, and other "external trappings" of the relationship are not protected, if they do not reveal confidential attorney-client communications.25 However, an engagement letter will be privileged if its contents are tantamount to a confidential communication to obtain legal advice or if it contains legal advice.26
Because the amount paid to an attorney is generally not privileged, invoices and bills are generally not protected by the privilege unless they reflect attorney-client communications.27 For this reason, clients should be careful about the amount of detail that they request in invoices. Options include not requiring substantial detail about the substance of communications or research conducted, or requiring that the description on the invoice not go beyond what would be required on a privilege log. If the bills or time sheets reflect the substance of privileged communications, however, they may be privileged. Moreover, if only parts of the bill or time sheets are privileged, such privileged information may be redacted before production.28
[b] Draft Documents Provided to Third Parties
Courts differ when applying the attorney-client privilege to draft documents when the final document is intended to be disclosed to third parties—e.g., a draft press release sent to attorneys for legal review. Some courts treat the entire draft as privileged because it is an attorney-client communication made to obtain legal advice.29 That position is consistent with the proposition that the attorney-client privilege protects the communication rather than the underlying facts: it treats the draft and the final versions as separate communications, with an expectation of confidentiality for the draft, as long as it is not identical to the final version. Other courts, however, have held that one should redact those portions of the draft that were not included in the final version, if the final version was disclosed to third parties.30 The redactions, however, should not be so limited that they reveal the substance of the privileged information.
Since the privilege protects counsel's legal advice, if counsel's comments or edits are viewed solely as grammatical or editorial, they may not be privileged. However, an attorney's wording changes may reflect the lawyer's legal advice and analysis, even if they appear to be simply grammatical. Consider, for example, the potential legal consequences of a press release that says "X causes Y" versus "X has been associated with Y"; a lawyer's advice to publicly acknowledge an association rather than a causal relationship is more than mere wordsmithing. The client and counsel may consider identifying the legal advice requested or given in those communications on the applicable draft to facilitate subsequently identifying the privileged nature of communications regarding drafts.
[5] The Crime-Fraud Exception
A communication that is made for the purpose of committing a crime or fraud will not remain protected by the attorney-client privilege.31 For the crime-fraud exception to apply, "the client must have made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act."32 To remove the privilege, each specific communication at issue must be shown to have been made in furtherance of the alleged crime or fraud; a mere showing of relevance is insuf-ficient.33 Accordingly, crime-fraud determinations must be made on a document-by-document basis.34 Some courts require the crime or fraud to have been actually committed, holding that a client's bad intentions do not suffice to pierce the priv-ilege.35 But the exception generally applies where legal advice "gives direction for the commission of [a] future fraud or crime."36 The crime-fraud exception may apply even if the attorney is unaware of the crime or fraud.37 However, temporal proximity between the communication with counsel and the crime or fraud alone is generally not enough, and courts typically require the proponent of the exception to demonstrate that the client sought the legal advice with the intent to further unlawful or fraudulent conduct.38
The party seeking to overcome the privilege has the initial burden to establish a prima facie case.39 This requires evidence showing "the element of an ongoing or imminent crime or fraud."40 Mere allegations of crime or fraud are insufficient.41 The prima facie showing must be made by non-privileged evidence that supports a reasonable belief that the crime-fraud exception applies.42 If the party challenging privilege satisfies its burden of establishing a prima facie case, courts in civil litigation...
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