Chapter 2 Attorney-client Privilege: Introduction and Basic Principles

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 2

ATTORNEY-CLIENT PRIVILEGE: INTRODUCTION AND BASIC PRINCIPLES

2.1 INTRODUCTION

The attorney-client privilege stands alone as the oldest and most important evidentiary protection.

• Lawyers should familiarize themselves with attorney-client privilege principles, because they can affect every communication in which a lawyer participates.

2.2 ETHICS DUTY OF CONFIDENTIALITY CONTRASTED

The attorney-client privilege protects communications between clients and their lawyers under certain circumstances.

In contrast, lawyers' ethics duty of confidentiality generally covers far more, usually any client-related information lawyers obtain during the attorney-client relationship. ¹

• Thus, the ethics duty covers information that courts generally do not find to be privileged, such as a clients' identity.

2.3 SOCIETAL BENEFITS AND COSTS OF THE PRIVILEGE

The attorney-client privilege provides societal benefits, but at a cost. [2.301]

The privilege arose in Roman times, and later developed in English jurisprudence, before developing organically in every United States jurisdiction. [2.302]

The privilege benefits society by encouraging clients to freely share all pertinent information with their lawyers with the assurance that no third

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parties will ever discover what the clients said. This allows lawyers to guide clients toward lawful behavior, and resolve disputes. [2.303]

However, society pays a heavy price for this benefit, because the privilege undoubtedly hides the truth. [2.304]

The tension between these competing societal interests reflects itself in the privilege's fragility and narrowness. [2.305]

The United States Supreme Court has emphasized the importance of certainty, ² so clients feel safe in fully disclosing...