Confidentiality vs Attorney-Client Privilege

Question 1

What falls within the Duty of Confidentiality?

Answer 1

Any information about a client or representation; very broad scope

Question 2

What are the policy goals of the Attorney-Client Privilege?

Answer 2

1. Improving the quality of representation

2. encourages open and honest conversations

Question 3

What falls within the Attorney-Client Privilege?

Answer 3

Any communications between a lawyer and client

Question 4

What are the elements of the Attorney-Client Privilege?

Answer 4

1. Communications (not underlying facts)
2. Between Privileged Persons
3. The communications were made in confidence (with reasonable expectation of privacy)
4. The communication is for the purpose of seeking legal advice

Question 5

Upjohn Case Rule of Law

Answer 5

In the corporate context, the attorney-client privilege applies to not only those high-level employees who have the authority to act on the legal advice of the attorney, but also to any of those employees who provide information to the attorney so that he may give such legal advice.

Question 6

Test adopted by SCOTUS in Upjohn case:

Answer 6

Subject Matter Test

Question 7

Subject Matter Test Factors:

Answer 7

1. Communication was made for the purpose of securing legal advice;
2. the employee making the communication did so at the direction of his corporate superior;
3. the superior made the request so that the corporation could secure legal advice;
4. the subject matter of the communication is within the scope of the employee’s corporate duties; and
5. the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Question 8

Attorney-Client Privilege & Death of Client: General Rule

Answer 8

Attorney-CLient privilege does NOT terminate after death