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Attorney-client privilege

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This article is about a United States legal term. For the Commonwealth equivalent, see solicitor-client privilege.
Attorney-client privilege is a legal concept that protects communications between a client and his or her attorney and keeps those communications confidential. This privilege encourages open and honest communication between clients and attorneys. However, in the United States, not all state courts treat attorney communications as privileged. For instance, Washington state law, and the federal courts when applying federal law, only protect client communications -- an attorney's communication will only be protected as privileged to the extent it contains or reveals the client's communications. In contrast, California state law protects the attorney's confidential communications regardless of whether they contain, refer to or reveal the client's communications. In addition, the United States Supreme Court has ruled that the privilege generally does not terminate upon the client's death. See Swidler & Berlin v. United States, 524 U.S. 399 (1998).

Contents

General requirements under United States law

The general requirements for a valid assertion of attorney-client privilege in many jurisdictions in the United States are:

  1. The asserted holder of the privilege is (or sought to become) a client; and
  2. The person to whom the communication was made:
  3. # is a member of the bar of a court, or his subordinate, and
  4. # in connection with this communication, is acting as an attorney; and
  5. The communication relates to a fact of which the attorney was informed:
  6. # by his client,
  7. # without the presence of strangers,
  8. # for the purpose of securing primarily either:
  9. ## an opinion on law, or
  10. ## legal services, or
  11. ## assistance in some legal proceeding,
  12. # and not for the purpose of committing a crime or tort; and
  13. The privilege has been claimed, and
  14. The privilege has not been waived.
See, e.g., Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962), cert. denied, 371 U.S. 951, 83 S. Ct. 505 (1963), citing United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950).

The attorney-client privilege is separate from and should not be confused with the work product doctrine.

Limits of attorney-client privilege

In the United States, communications between accountants and their clients are usually not privileged, so a person worried about accusations of questionable accounting (such as tax evasion) may decide to work only with an attorney (or an accountant who is also an attorney); some or all of the resulting communications may be privileged provided that all the requirements for the attorney-client privilege are met. The mere fact that the practitioner is an attorney will not create a valid attorney-client privilege with respect to a communication, for example, that involves business or accounting advice rather than legal advice.

Under Federal tax law in the United States, for communications on or after July 22, 1998, there is a limited Federally authorized tax practitioner privilege that may apply to certain communications with non-attorneys. See Accountant-client privilege.

When an attorney is not acting primarily as an attorney but, for instance, as a business advisor, member of the Board of Directors, or in another non-legal role, then the privilege generally does not apply. Accordingly, the attorney-client privilege is probably not available when an attorney is acting as a tax return preparer. Tax preparation is a service intended to result in disclosure to the Internal Revenue Service and some United States courts have held that the work papers and discussions with clients relative to the preparation of tax returns are not protected.

The privilege protects the confidential communication, and not the underlying information. For instance, if a client has previously disclosed confidential information to a third party who is not an attorney, and then gives the same information to an attorney, the attorney-client privilege will still protect the communication to the attorney, but will not protect the information provided to the third party.

The privilege may be waived if the confidential communications are disclosed to third parties.

In the Federal Courts

If a case arises in the federal court system, the federal court will apply Rule 501 of the Federal Rules of Evidence to determine whether to apply the privilege law of the relevant state or federal common law. If the case is brought to the federal court under diversity jurisdiction, the law of the relevant state will be used to apply the privilege. If the case involves a federal question, the federal court will apply the federal common law of attorney-client privilege. However, Rule 501 grants flexibility to the federal courts, allowing them to construe the privilege "in light of experience and reason."

See also

External link

 

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