Attorney-Client Privilege

What is the attorney-client privilege?

The attorney-client privilege is the oldest of the common law privileges for confidential communications. Other such privileges include the doctor-patient privilege and husband-wife privilege. Renowned former Northwestern School of Law Dean John Wigmore provided the classic definition of the attorney-client privilege as follows: (1) Where legal advice of any kind is sought, (2) from a professional legal advisor in his capacity as such, (3) the communication related to that purpose, (4) made in confidence, (5) by the client, (6) is at his instance permanently protected, (7) from disclosure by himself or by the legal adviser, (8) except where the protection is waived.

What is the purpose of the attorney-client privilege?

The attorney-client privilege encourages candid communication between attorneys and their clients, thereby promoting the observance of law and administration of justice. At the same time, however, because the privilege prevents the court from hearing relevant evidence, the party asserting the privilege bears the burden of establishing that the communication is in fact privileged.

Who may assert the privilege?

Technically, only the client has authority to assert the privilege. As a practical matter, however, attorneys usually claim the privilege on their clients’ behalf.

Who is the client?

The client is the intended beneficiary of the legal services. It is well-established law that institutions such as Northwestern can assert the attorney-client privilege. The trickier issue is which employees may speak on behalf of the client institution. The answer to this question varies across jurisdictions. Whereas federal courts have adopted a relatively broad definition of the client, the Illinois Supreme Court has held that communications made only by upper echelon employees are privileged.

How is the privilege waived?

The attorney-client privilege may be waived in any number of ways. Waiver most commonly occurs when the communication later is disclosed to a third party. Courts will often deem the privilege waived even if the disclosure was inadvertent. One of the most well-known inadvertent waiver cases involved a party’s rummaging through its adversary’s garbage over a period of two years to uncover evidence favorable to its case. Ruling that the privilege was waived, the court noted both that the party asserting the privilege had failed to render the documents unreadable and that the use of paper shredders was common. This case demonstrates just how prudent clients and counsel must be when seeking to preserve the privilege.

Are agents of the attorney bound by the privilege?

The privilege usually extends to agents employed by the attorney, such as paralegals, secretaries, medical experts, and stenographers. This rule recognizes that attorneys often rely on the assistance of non-lawyers to represent the best interests of their clients.

Is everything I say to my lawyer privileged?

No. It is a mistake to assume that a communication is privileged simply because it occurs between you and your lawyer, even if you label the memorandum or e-mail in question "Confidential: Attorney-Client Privilege." The law of attorney-client privilege is complex and subtle; hence, whether the privilege actually applies in a particular case often turns on small facts.

Among the most noteworhty limits on the scope of the attorney-client privilege are:

  • The communication must be made to a lawyer acting in a legal capacity. Thus, no privilege attaches where the lawyer provides business, as opposed to legal, advice or performs functions that a non-lawyer could perform.
  • The privilege applies only if the client had a reasonable expectation that his communication with the attorney was confidential. There are numerous so-called bystander cases in which a third party overhears an otherwise privileged communication. The outcome of such cases often depends on very minute details, such as whether the client was aware - or reasonably should have been aware - of the bystander’s presence.
  • The privilege protects communication between lawyer and client; it does not necessarily shield from disclosure facts that clients tell their lawyers. For instance, clients cannot refuse to disclose the details of an accident they witnessed by claiming that the details are privileged because they previously told their attorney what happened.
  • For obvious reasons, the attorney-client privilege may not be invoked where the communication was made in furtherance of crime or fraud.

Are e-mails privileged?

It makes no difference whether the communication occurs via e-mail or conventional mail. But because e-mail facilitates the nearly effortless dissemination of information to a potentially wide audience, clients must take care that the privilege is not inadvertently waived.