Discovery and evidence
Attorney-Client Privilege
The attorney-client privilege protects confidential communications between a lawyer and client made for the purpose of getting or giving legal advice.
It belongs to the client, who alone can waive it, and it covers the communication rather than the underlying facts. A client cannot hide a fact simply by telling it to a lawyer, but the conversation itself is protected.
It is easily lost. Copying a non-lawyer on an email, forwarding advice outside the company, or seeking help in furtherance of a crime or fraud can all strip the protection.
Corporate settings complicate it further. The privilege belongs to the company, not to the employee being interviewed, which is why counsel give warnings explaining that the company may waive the privilege and share what the employee said. The privilege also survives the client. It continues after death and, for a company, passes to whoever controls the entity, which is why a bankruptcy trustee can waive privilege over a debtor's old legal advice.
How it appears on a docket
MOTION to Compel documents withheld as privileged, arguing the crime-fraud exception applies to communications made in furtherance of the alleged scheme.
Governing rule
Fed. R. Evid. 501, 502
Related terms
- Privilege Log — A privilege log is the list a party must produce describing documents it is withholding as privileged, without revealing their contents.
- Work Product Doctrine — The work product doctrine shields materials a party or its lawyer prepared in anticipation of litigation from discovery by the other side.
More on discovery and evidence
See this term in a real case
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