The Scope and Use of the Attorney-Client Privilege in the U.S. and Its Applicability to Communications at Home and Abroad

ALTHOUGH the attorney-client privilege has been described as, one of the most revered of common law privileges, (1) recent developments have challenged the scope and use of the privilege, particularly concerning government investigations of corporate clients. In a recent survey by the National Association of Criminal Defense Lawyers, 87 percent of lawyers surveyed reported that they had experienced recent challenges to the attorney-client privilege. (2) Additionally, 85 percent reported that the Department of Justice and Securities and Exchange Commission frequently require waiver discussions when negotiating settlements. (3) Reviewing the characteristics of the privilege in the United States will aid clients and practitioners in ensuring that their communications remain as securely shielded by the attorney-client privilege as possible. What the Privilege Is The attorney-client privilege the oldest confidential communications privilege known to the common law. (4) Though each U.S. jurisdiction retains its own particular privilege test, often codified by statute, most jurisdictions require the same four elements for establishing privilege. There must be (1) a communication (2) between counsel and client (3) made confidentially (4) for the purpose of obtaining or rendering legal advice. (5) Though most jurisdictions have extended the privilege to include a client's confidential communications with a subordinate or outside agent assisting an attorney, the communication must always be confidential and made for the purpose of obtaining or rendering legal advice. (6) The privilege protects these communications to encourage frank discussions between a client and an attorney and to ensure that an attorney is not hindered in providing legal advice and services to a client. (7) The attorney-client privilege rests with the client and survives an individual client's death. (8) What It Is Not Jurisdictions also are similar in what they do not protect under the attorney-client privilege. First, the privilege does not protect facts, including those imbedded within otherwise privileged communications. (9) Even facts concerning the attorney-client relationship itself, such as a client's identity, whether such a relationship exists, when an attorney was retained, or the terms of the attorney's engagement, usually are not privileged. (10) Additionally, the attorney-client privilege applicable only to information sought for the purpose of obtaining legal advice and to communications involving an attorney acting as a legal advisor. (11) Therefore, business advice rendered by an attorney not privileged. (12) As a practical matter, documents containing both privileged communications and facts or business advice likely are discoverable, but may be redacted before production. The attorney-client privilege also does not protect information that counsel obtained from third parties during the course of representation. (13) Therefore, communications from counsel to the client disclosing information from third parties would not be protected because the underlying communication between counsel and the third party not protected. (14) Counsel's notes and impressions of third party conversations may be protected, however, as attorney work product. Choice of Law Because jurisdictions each have their own particular attorney-client privilege laws, choice or conflict of law issues can arise. Federal courts sitting in diversity jurisdiction apply state law concerning the attorney-client privilege. (15) A court determines which state's privilege laws apply by analyzing the forum state's choice or conflict of law principles. (16) States generally look to the state with the greatest interest or most significant relationship to the case generally, or to the privilege issue specifically. (17) Among the factors analyzed are: choice of law agreements, the principal locations of the parties involved, the location of the disputed occurrence, the location of the communication, where discovery occurring, and where any waiver alleged to have occurred. …