Attorney Client Privilege Flashcards
What are the Steps to a Legal Malpractice Case? (4)
- Attorney-Client Relationship existed
- Attorney/Defendant acted negligently
- Act was proximate cause of damages
- BUT FOR the negligence, the outcome probably would have been more favorable for the Plaintiff
Who does Attorney Client Privilege include?
- Attorneys and her agents
- Those necessary to assist the client (ex: parents, interpreters)
Whose Duty is it to Clarify the role of a Third Party Between Attorney Client Relationship?
The Lawyer’s Duty
What are the Elements of Attorney Client Privilege? (3)
A communication is privileged if:
1. It occurs between privileged persons
2. The client reasonably believes it is confidential AND
3. It’s purpose is to seek or to provide legal advice or legal services
Under ACP, What constitutes as Communications?
Any form of exchanging information: written or oral, atty drafts provided to client for review, any documents if prepared for purpose of seeking legal advice
How does a Client waive privilege?
A client can waive privilege by disclosing privileged communication to a third person
A Lawyer can only waive privilege IF: (3)
- Express Authority: Tells the Lawyer they MAY do so
- Implied Authority: Giving Direction that imply they MAY do so
- Apparent Authority: Client tells Third Party that lawyer has authority to waive privilege
What are Exceptions to the ACP? (5)
- Crime Fraud Exception
- Lawyer’s Self Defense: a lawyer MAY reveal privileged communication to defend lawyer or agent (malpractice)
- 6th Amendment: MAY be an exception if upholding privilege would deny defendant of his constitutional rights of confrontation and cross examination
- Underlying facts: ARE NOT covered by ACP: only the communication itself is privileged
- Strong public policy interest: (protect child from death or serious injury)
What is the Crime Fraud Exception?
Privilege does not protect communications made in furtherance of a crime or fraud.
Party seeking the information must try to show that client was planning or is committing a crime or fraud when communicating with lawyer
