What Is the Attorney Client Privilege Explained

TL;DR

Attorney-client privilege is a legal rule that keeps communications between a lawyer and their client confidential. This protection allows clients to speak openly and honestly with their attorney to get effective legal advice without fear that their words will be used against them in court. For the privilege to apply, the communication must be for the purpose of seeking or obtaining legal counsel and must be kept secret from third parties. The client, not the lawyer, is the one who holds this privilege and can choose to waive it.

Key Highlights

Protects confidential communications between a client and their lawyer.
The primary purpose of the communication must be to seek or receive legal advice.
The client holds the privilege and is the only one who can decide to waive it.
The presence of unnecessary third parties can break the privilege.
It is not absolute; important exceptions, like the crime-fraud exception, exist.

The principle of attorney-client privilege is one of the oldest and most respected concepts in the Anglo-American legal system. Its origins trace back to Roman and canon law, eventually solidifying in English common law during the 16th century. Initially, it was considered the attorney’s privilege to keep, but over time, the courts recognized that the protection truly belonged to the client. This shift cemented its role as a fundamental right necessary for a fair justice system, ensuring that any person can seek legal counsel without fear of self-incrimination.

In the United States, this privilege is not just an abstract idea; it is a concrete rule of evidence enshrined in federal and state law. The American Bar Association (ABA) Model Rules of Professional Conduct, particularly Rule 1.6, establishes a broad ethical duty of confidentiality for lawyers. However, the attorney-client privilege is a more specific and powerful protection that applies within the context of legal proceedings. It prevents the government or opposing parties from compelling an attorney to testify against their client or produce confidential communications related to legal advice.

Understanding how this privilege works is essential for anyone who needs to interact with a lawyer. It is the bedrock of trust that allows for full and frank discussion, which is necessary for an attorney to provide competent representation. This protection is not automatic and does not cover every conversation you have with a lawyer. Knowing its requirements, its limits, and how it can be lost is critical to safeguarding your rights and ensuring your legal matters are handled with the secrecy they require.

The Core Elements of Attorney-Client Privilege

For a conversation or document to be protected by attorney-client privilege, it must meet a specific set of criteria. Courts generally look for four key elements. If any one of these is missing, the communication may not be considered privileged, and a court could force its disclosure.

A Communication

The first element is straightforward: there must be a communication. This is not limited to spoken words in a lawyer’s office. The definition is broad and includes a wide range of interactions intended to convey information between the client and the attorney.

Oral Communications: Face-to-face meetings, phone calls, and video conferences are all covered.
Written Communications: This includes letters, emails, text messages, and faxes.
Non-Verbal Acts: Actions can also be communications. For example, if a client shows their attorney a physical injury or points out a location on a map to explain an event, those actions are part of the privileged communication.

The key is that the interaction is intended to transmit information for the purpose of legal advice. A casual chat with a lawyer at a social event about the weather would not qualify, but a detailed email outlining the facts of a potential lawsuit would.

Between Privileged Persons

The communication must occur between the right people. At its most basic, this means the client and their attorney. However, the circle of “privileged persons” is often larger, extending to individuals who are essential for the provision of legal services.

The Client: This can be an individual, a group of people, a corporation, or another entity.
The Attorney: The lawyer must be acting in their professional capacity as a legal advisor.
Agents of the Attorney: The privilege extends to the lawyer’s staff who are necessary to the representation, such as paralegals, investigators, legal assistants, and secretaries. Their involvement does not break the privilege.
Agents of the Client: In some cases, the client may need an agent, like an interpreter, to facilitate communication with the lawyer. These necessary third parties are also covered.
Experts: The privilege can also cover communications with experts hired by the attorney to help with the case, such as an accountant, a medical expert, or an engineer. This is sometimes known as the Kovel doctrine, named after a case that extended the privilege to an accountant hired by a law firm.

In Confidence

This element is crucial and often where the privilege is accidentally lost. The communication must be made with the reasonable expectation that it will remain private. If the conversation happens in a setting where it can be easily overheard, the confidentiality may be broken.

For example, discussing sensitive details of your case with your lawyer in a crowded coffee shop is a bad idea. Similarly, including a friend, family member, or business associate in a meeting or on an email with your attorney can destroy the privilege for that communication. The third party is not essential to the legal advice, so their presence indicates that the client did not intend for the conversation to be confidential. The law presumes that if you are willing to share the information with an outsider, you are also willing to have it shared in court.

For the Purpose of Seeking Legal Advice

Not every conversation with a lawyer is privileged. The primary purpose of the communication must be to seek, obtain, or provide legal advice. If a client is asking their lawyer for business, financial, or personal advice, those communications are likely not protected.

This distinction becomes particularly important in a corporate setting. An in-house counsel often wears two hats: one as a legal advisor and one as a business advisor. An email to the company lawyer asking for an opinion on the business risks of a new product launch may not be privileged. An email asking the same lawyer whether the product’s marketing materials comply with advertising laws would be. To protect the privilege, it is wise to separate legal requests from business discussions whenever possible.

Who Holds the Privilege and How Is It Waived?

A common misconception is that the attorney-client privilege belongs to the lawyer. In reality, the privilege belongs exclusively to the client. The attorney has an ethical duty to assert the privilege on the client’s behalf and to keep their communications secret, but only the client has the power to waive it. Waiving the privilege means giving up the right to keep the communication confidential, allowing it to be used as evidence. This can happen in several ways, both on purpose and by accident.

Intentional Waiver

An intentional waiver occurs when the client knowingly and voluntarily discloses the privileged communication to a third party. For instance, if a client tells a friend what they discussed with their lawyer, the privilege for that specific conversation is waived. Another common example is when a client testifies in court about a conversation they had with their attorney. Once the client opens the door by revealing part of the communication, the opposing party may be able to question them about the entire conversation on that subject.

Inadvertent Waiver

In today’s world of electronic discovery, where thousands of documents are exchanged in litigation, accidental disclosures happen. A company might accidentally produce a privileged email in a batch of 100,000 other documents. In the past, this could result in a complete waiver of the privilege.

Recognizing the challenges of modern litigation, Federal Rule of Evidence 502 was created to provide some protection against inadvertent waiver. Under this rule, an accidental disclosure does not operate as a waiver if the holder of the privilege:

Took reasonable steps to prevent disclosure.
Promptly took reasonable steps to rectify the error once it was discovered.

Lawyers often use “clawback” agreements to manage this risk, which state that if a privileged document is accidentally produced, the receiving party must return it and cannot use it in the case.

Subject Matter Waiver

This is a more expansive form of waiver. If a client strategically discloses a part of a privileged communication that is favorable to their case, a court may rule that they have waived the privilege for the entire subject matter of that communication. This doctrine prevents a party from using the privilege as both a sword and a shield, revealing helpful information while hiding related, potentially harmful information. The goal is to ensure fairness and prevent a misleading presentation of the evidence.

Waiver by Putting Advice at Issue

A client cannot use their lawyer’s advice as a defense in a lawsuit and then refuse to disclose what that advice was. This is known as “at-issue” waiver. For example, if a defendant in a fraud case claims, “I did it because my lawyer told me it was legal,” they have put the attorney’s advice “at issue.” By doing so, they have waived the privilege, and the opposing party is entitled to explore all communications related to that advice to test the validity of the defense. The same principle applies if a client sues their former lawyer for legal malpractice.

Attorney-Client Privilege vs. The Duty of Confidentiality

The terms “attorney-client privilege” and “duty of confidentiality” are often used interchangeably, but they are distinct legal concepts with different scopes and purposes. Understanding the difference is key to grasping how your information is protected.

The attorney-client privilege is a rule of evidence. Its function is to protect confidential communications between a lawyer and client from being disclosed in a legal proceeding. It prevents a lawyer from being compelled by a court order or subpoena to reveal what a client told them in confidence while seeking legal advice. It is a shield that applies specifically in the context of litigation, depositions, and other formal legal settings.

The ethical duty of confidentiality, on the other hand, is much broader. It is a professional rule that governs a lawyer’s conduct at all times. As outlined in ABA Model Rule 1.6, a lawyer “shall not reveal information relating to the representation of a client” unless the client gives informed consent or the disclosure is implicitly authorized. This duty covers not just communications from the client but all information the lawyer learns in the course of the representation, regardless of the source.

Here is a simple breakdown of the key differences:

Feature	Attorney-Client Privilege	Duty of Confidentiality
Source	Rules of evidence and common law	Rules of professional and ethical conduct
Scope of Information	Protects communications for the purpose of legal advice	Protects all information related to the representation
Application	Applies in legal proceedings (prevents compelled testimony)	Applies at all times and in all settings (prevents voluntary disclosure)
Exceptions	Has specific legal exceptions (e.g., crime-fraud)	Has different ethical exceptions (e.g., to prevent death)

In practice, the duty of confidentiality acts as a wide umbrella, while the privilege is a stronger, more specific shield used in court. For example, the fact that a client met with a lawyer is not privileged, but it is confidential. A lawyer cannot gossip about their client’s visit, but if asked under oath in court, they would likely have to confirm the meeting took place. What was said during that meeting for the purpose of legal advice, however, would be protected by the privilege.

Common Exceptions to the Privilege

The attorney-client privilege is powerful, but it is not absolute. Courts have recognized several exceptions to prevent the privilege from being used to conceal wrongdoing or create unfairness in the legal process. When an exception applies, a communication that would otherwise be protected loses its privileged status.

The Crime-Fraud Exception

This is the most well-known exception. The privilege exists to encourage clients to comply with the law, not to help them break it. The crime-fraud exception states that if a client seeks a lawyer’s services to enable or aid in the commission of a future crime or fraud, the communications are not privileged.

This exception is forward-looking. It applies to future or ongoing crimes, not past ones. A client can confess to a past crime to their lawyer, and that communication is fully privileged. However, if a client asks a lawyer for advice on how to commit a crime, such as how to launder money or conceal assets from a bankruptcy court, those communications are not protected. To invoke this exception, a party must present evidence that gives a reasonable basis to believe that the legal advice was sought in furtherance of a crime or fraud.

Disputes Between Attorney and Client

When a client and their lawyer become adversaries, the privilege is partially waived. This typically happens in two scenarios:

Legal Malpractice Claims: If a client sues their lawyer for providing inadequate representation, the client cannot use the privilege to prevent the lawyer from using their communications to mount a defense.
Fee Disputes: If a lawyer has to sue a client to collect unpaid legal fees, the lawyer is permitted to disclose privileged information to the extent necessary to establish the services they provided and the fees owed.

In both cases, the waiver is limited to the information needed to resolve the specific dispute.

Communications Between Joint Clients

Sometimes, two or more clients hire the same lawyer to represent them in a common matter. This is common for business partners starting a company or co-defendants in a lawsuit. In this situation, their communications with the shared lawyer are privileged as to the outside world. However, the privilege does not apply between the joint clients. If the business partners later have a falling out and sue each other, one partner cannot use the privilege to prevent the other from introducing their shared communications with the lawyer as evidence.

The Deceased Client Exception (Testamentary Exception)

Generally, the arizona wrongful death attorney-client privilege survives the death of the client. However, a notable exception arises in will contests and other disputes among a deceased client’s heirs. In these cases, courts may waive the privilege to determine the deceased person’s true intent for their estate. The rationale is that the deceased would have wanted their wishes to be carried out, and disclosing their communications with their lawyer may be the only way to clarify those wishes.

The Privilege in a Corporate Setting

Applying the attorney-client privilege in a corporate context presents unique challenges. A corporation is a legal entity that can be a client, but it cannot speak for itself. It acts through its directors, officers, and employees. This raises a critical question: which employees’ communications with the company’s lawyer are protected by the privilege?

Early on, some courts used a “control group” test, which limited the privilege to communications with high-level executives who had the authority to act on the lawyer’s advice. This narrow view left communications with lower-level employees, who often have the most direct knowledge of the facts, unprotected.

The U.S. Supreme Court rejected this restrictive approach in the landmark 1981 case Upjohn Co. v. United States. The Court established a more flexible “subject matter” test, which is now the standard in federal courts and many states. Under the Upjohn standard, a communication between a corporate employee and the company’s lawyer is privileged if it meets certain conditions:

The communication was made for the purpose of providing legal advice to the corporation.
The employee was acting at the direction of their corporate superiors.
The information concerned matters within the scope of the employee’s corporate duties.
The employee knew the communication was for the purpose of obtaining legal advice.
The communications were considered and kept confidential within the corporation.

This broader protection allows corporate counsel to conduct effective internal investigations by gathering facts from employees at all levels without fear that those conversations will be discoverable by opponents. However, it is vital for corporate lawyers to give employees an “Upjohn warning,” clarifying that the lawyer represents the corporation, not the employee as an individual. This ensures the employee understands that the corporation holds the privilege and can choose to waive it, even if it is against the employee’s personal interests.

Practical Steps to Protect the Attorney-Client Privilege

Both clients and lawyers have a role to play in safeguarding the privilege. A single careless action can lead to an unintentional waiver, with serious consequences for a legal case. Following some basic best practices can help maintain the confidentiality of your legal communications.

For Individual Clients

Be Explicit: When you contact a lawyer, state clearly that you are seeking legal advice.
Avoid Third Parties: Do not include friends, family members, or other non-essential individuals in your meetings, phone calls, or emails with your attorney. Their presence can break the privilege.
Maintain Secrecy: Do not forward privileged emails from your lawyer to others. Do not discuss the substance of your lawyer’s advice with anyone. This includes posting about your case on social media.
Use Secure Channels: Avoid using a work email account to communicate with your personal attorney, as your employer may have the right to monitor it. Use a personal email account instead.

For Businesses and Corporations

Label Communications: Mark documents and email subject lines with a clear legend, such as “ATTORNEY-CLIENT COMMUNICATION – PRIVILEGED & CONFIDENTIAL.” While this label is not foolproof, it signals the intent to keep the communication private.
Involve Counsel Early: Bring lawyers into sensitive discussions from the beginning, rather than just copying them on an email chain after a problem has developed.
Separate Legal and Business Advice: To the extent possible, create separate communications for legal and business matters. This helps prevent a court from ruling that a communication was primarily for business purposes and therefore not privileged.
Limit Distribution: Only include people on privileged communications who absolutely need to be involved in the legal matter. A wide distribution list increases the risk of waiver.
Train Employees: Educate employees on the basics of the attorney-client privilege and the company’s policies for communicating with legal counsel. This helps create a culture of compliance and reduces the risk of inadvertent waiver.

The attorney-client privilege is a cornerstone of the American legal system, designed to promote the open communication necessary for effective legal representation. It is not an absolute secret-keeping cloak but a specific evidentiary rule with clear requirements and defined exceptions. It protects confidential communications made for the purpose of seeking legal advice, and it belongs to you, the client.

Understanding that this protection can be waived, either intentionally or through carelessness, is the first step toward safeguarding it. By being mindful of who is present during conversations, how communications are labeled, and what you share with others, you can help ensure that your discussions with your lawyer remain protected. The privilege fosters the trust that allows you to be completely candid with your legal counsel, which in turn allows them to provide you with the best possible advice and advocacy.

Protecting this privilege requires diligence from both you and your legal team. If you are facing a legal issue, it is vital to speak with a qualified attorney who can provide guidance tailored to your specific circumstances. A knowledgeable lawyer will not only advise you on the law but will also help you maintain the confidentiality that is critical to protecting your rights. Do not hesitate to seek professional legal counsel to ensure your communications are secure and your interests are fully defended. Contact us for free evaluation today.

What Is the Attorney-Client Privilege? A Definitive Explanation