Privilege and work product - Attorney-client privilege

Learning Outcomes

After reading this article, you will be able to identify the requirements for attorney-client privilege, distinguish it from the ethical duty of confidentiality, recognize key exceptions, and apply the work product doctrine. You will be prepared to analyze privilege issues in MPRE-style questions, including when privilege applies, when it is waived, and how it interacts with litigation and client communications.

MPRE Syllabus

For the MPRE, you are required to understand the legal protections for client communications and attorney work product. This article covers:

• The elements and scope of the attorney-client privilege.
• The distinction between attorney-client privilege and the ethical duty of confidentiality.
• The main exceptions to privilege, including crime-fraud and disputes between lawyer and client.
• The work product doctrine and its application in discovery.
• Waiver and inadvertent disclosure of privileged information.
• The privilege’s application to organizations and prospective clients.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is protected by the attorney-client privilege?
   1. A client's confidential statement to a lawyer seeking legal advice.
   2. A lawyer's observation of a client's behavior.
   3. The client's identity and fee arrangements.
   4. All information relating to the representation.
2. The attorney-client privilege does NOT apply when:
   1. The client seeks advice about a future crime.
   2. The client confesses to a past crime.
   3. The client discusses a civil matter.
   4. The client communicates through an interpreter.
3. Which statement about the work product doctrine is correct?
   1. It protects all documents prepared by a lawyer, regardless of purpose.
   2. It protects materials prepared in anticipation of litigation, subject to exceptions.
   3. It only applies to communications between lawyer and client.
   4. It is identical to the attorney-client privilege.
4. If a client sues a lawyer for malpractice, the lawyer:
   1. Must keep all client communications confidential.
   2. May reveal confidential information as necessary to defend against the claim.
   3. May reveal any information learned from third parties.
   4. May only reveal information with court approval.

Introduction

Attorney-client privilege is a central concept in legal ethics and evidence law. It protects certain communications between a client and lawyer from compelled disclosure in legal proceedings. This privilege is distinct from the broader ethical duty of confidentiality, which governs a lawyer’s conduct outside the courtroom. Understanding the requirements, scope, and exceptions to the privilege is essential for MPRE success.

Key Term: Attorney-Client Privilege
A rule of evidence that protects confidential communications between a client and lawyer made for the purpose of obtaining or providing legal advice, preventing compelled disclosure in legal proceedings.

Elements of Attorney-Client Privilege

To be protected by the attorney-client privilege, a communication must meet all of the following:

1. Confidential Communication: The client must intend the communication to be private. If a third party is present (other than necessary agents), privilege is usually lost.
2. Between Client and Lawyer: The communication must be between a client (or prospective client) and a lawyer acting as such, or their respective agents.
3. For Legal Advice: The purpose of the communication must be to seek or provide legal advice or assistance, not business or personal advice.

Key Term: Confidential Communication
Information intended by the client to be private, exchanged with the lawyer for the purpose of seeking or giving legal advice.

Who Holds and Waives the Privilege

The privilege belongs to the client, not the lawyer. Only the client can waive it, either expressly or by disclosing the communication to third parties. The privilege survives the end of the representation and even the client’s death.

Key Term: Waiver (Privilege)
The voluntary relinquishment of the attorney-client privilege, usually by the client’s disclosure of the communication to a third party or by failing to assert the privilege when required.

Scope and Limitations

• Not All Information Is Privileged: The privilege covers only communications, not fundamental facts, client identity, or fee arrangements (unless disclosure would itself reveal privileged information).
• Presence of Third Parties: Communications made in the presence of unnecessary third parties are not privileged. However, interpreters, paralegals, or agents necessary for the communication do not destroy privilege.
• Corporate Clients: Privilege applies to communications between the lawyer and authorized employees or agents of the organization, if made for legal advice.

Exceptions to Privilege

The attorney-client privilege does not apply in certain situations:

1. Crime-Fraud Exception: If a client seeks advice to commit or cover up a future crime or fraud, the communication is not privileged.
2. Disputes Between Lawyer and Client: Privilege does not prevent a lawyer from disclosing communications necessary to defend against malpractice claims, fee disputes, or disciplinary proceedings.
3. Co-Clients and Former Co-Clients: Communications between joint clients are not privileged in subsequent disputes between them.
4. Waiver by Disclosure: If the client voluntarily discloses the communication to a third party, privilege is waived as to that communication.

Key Term: Crime-Fraud Exception
An exception to attorney-client privilege that removes protection from communications made to further a future crime or fraud.

Ethical Duty of Confidentiality vs. Privilege

The ethical duty of confidentiality is broader than the attorney-client privilege. It covers all information relating to the representation, regardless of source, and applies in all contexts, not just legal proceedings. However, it is subject to exceptions, such as preventing reasonably certain death or substantial bodily harm, or as required by law.

Key Term: Duty of Confidentiality
The ethical obligation of a lawyer not to reveal any information relating to the representation of a client, regardless of its source, unless the client consents or an exception applies.

Work Product Doctrine

The work product doctrine protects materials prepared by a lawyer (or at a lawyer’s direction) in anticipation of litigation from discovery by opposing parties. This protection is not absolute—opposing parties may obtain work product if they show substantial need and cannot obtain the equivalent by other means. However, a lawyer’s mental impressions, conclusions, and legal theories are given special protection.

Key Term: Work Product Doctrine
A rule that protects materials prepared by or for a lawyer in anticipation of litigation from discovery, subject to exceptions for substantial need.

Waiver and Inadvertent Disclosure

• Intentional Disclosure: If a client or lawyer intentionally discloses privileged information in a legal proceeding, the privilege is generally waived as to that subject matter.
• Inadvertent Disclosure: Accidental disclosure does not automatically waive privilege if reasonable steps are taken to prevent and promptly rectify the error.

Privilege and Prospective Clients

Communications with a lawyer by a person seeking to become a client are protected by privilege, even if no formal relationship results, as long as the person reasonably believes the communication is confidential and for legal advice.

Key Term: Prospective Client
A person who consults a lawyer about the possibility of forming a client-lawyer relationship regarding a legal matter.

Worked Example 1.1

A client emails her lawyer, asking for advice about whether a proposed business deal could violate antitrust laws. She copies her business partner, who is not seeking legal advice, on the email. Is the email privileged?

Answer:
The portion of the email sent only to the lawyer is privileged, as it is a confidential communication seeking legal advice. However, copying the business partner, who is not an agent necessary for the communication, destroys privilege for the email as sent to both the lawyer and the partner.

Worked Example 1.2

A client tells his lawyer, in private, that he committed a robbery last year. The client asks for advice about the possible consequences. Is this communication privileged?

Answer:
Yes. The communication is confidential, between client and lawyer, and seeks legal advice about a past act. Privilege does not protect communications about future crimes, but it does protect confessions about past acts.

Worked Example 1.3

A client sues her lawyer for malpractice. The lawyer wishes to introduce emails from the client that would help defend against the claim. Can the lawyer do so?

Answer:
Yes. The privilege does not prevent a lawyer from disclosing client communications necessary to defend against malpractice claims or other disputes arising from the representation.

Exam Warning

The attorney-client privilege is narrower than the ethical duty of confidentiality. Do not confuse the two on the exam. Privilege only protects confidential communications for legal advice, not all information relating to the representation.

Revision Tip

When analyzing privilege questions, always ask: Was the communication confidential? Was it for legal advice? Was it between client and lawyer (or necessary agents)? If not, privilege likely does not apply.

Key Point Checklist

This article has covered the following key knowledge points:

• Attorney-client privilege protects confidential communications for legal advice between client and lawyer.
• The privilege belongs to the client and can be waived by disclosure to third parties.
• Privilege does not cover fundamental facts, client identity, or fee arrangements.
• Main exceptions: crime-fraud, disputes between lawyer and client, waiver by disclosure.
• The ethical duty of confidentiality is broader than privilege and applies outside legal proceedings.
• Work product doctrine protects materials prepared in anticipation of litigation, with special protection for mental impressions.
• Privilege applies to prospective clients and organizational clients, subject to specific rules.

Key Terms and Concepts

• Attorney-Client Privilege
• Confidential Communication
• Waiver (Privilege)
• Crime-Fraud Exception
• Duty of Confidentiality
• Work Product Doctrine
• Prospective Client