5: Attorney–client privilege

Question 1

Unprotected communications

Answer 1

The attorney-client privilege does not protect these confidential communications:

i) Communications made to enable or aid the commission of what the client knew or should have known was a crime or fraud;
ii) Communications relevant to a dispute between attorney and client (e.g., a malpractice allegation);
iii) Communications relevant to a dispute between parties who claim through the same deceased client; and
iv) Communications between former co-clients who are now adverse to each other.

Question 2

Confidential communications

Answer 2

For A–C privilege to apply:

(1) The client must have made reasonable efforts to keep the communications confidential; and
(2) The client cannot have made the communications in the presence of unnecessary third parties.

An unknown secret eavesdropper will not destroy the privilege.

Question 3

Confidential communications: unnecessary third parties

Answer 3

Unnecessary third parties do not include joint clients, translators, the lawyer’s agents, or accountants working with the client and the lawyer.

Question 4

Scope of attorney–client privilege

Answer 4

Attorney–client privilege protects confidential communications between a client and a lawyer if the communication was for purposes of securing legal advice.

Neither the lawyer nor the client can be forced to testify about a protected communication.

The privilege only protects the communications, not the underlying facts or evidence that the client knows.

Question 5

Corporate clients

Answer 5

Federal law focuses on the context of the communication in considering whether communications are privileged.

Under federal law, a communication made by an employee about matters within the scope of employment for purposes of seeking legal advice is privileged, even if the employee is not a member of the “control group.”

Question 6

Unprotected communications: crime–fraud exception

Answer 6

If a client communicates to a lawyer for purposes of getting help with what the client knows—or should know—is a crime or fraud, the communication is not privileged:

• It is the client’s awareness of the criminal nature of his actions that defeats the privilege;
• The attorney’s knowledge of the client’s criminal purpose is not necessary to make the communication admissible.

Question 7

Attorney–client disputes exception

Answer 7

Privilege does not apply when a client and its attorney are in litigation.

Question 8

The work-product doctrine

Answer 8

Documents prepared in anticipation of litigation may not be protected by A–C privilege but will be protected by the work-product doctrine.