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Attorney-Client Privilege

Further Readings

In the law of evidence, a client's privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it. In federal courts, state law is applied with respect to such privilege.

The attorney-client privilege encourages clients to disclose to their attorneys all pertinent information in legal matters by protecting such disclosures from discovery at trial. The privileged information, held strictly between the attorney and the client, may remain private as long as a court does not force disclosure. The privilege does not apply to communications between an attorney and a client that are made in furtherance of a FRAUD or other crime. The responsibility for designating which information should remain confidential rests with the client. In its most common use, however, the attorney claims the privilege on behalf of the client in refusing to disclose to the court, or to any other party, requested information about the client's case.

As a basic construction in the judicial system, the privilege is an ancient device. It can be found even in Roman law—for example, Marcus Tullius Cicero, while prosecuting the governor of Sicily, could not call the governor's advocate as a witness, because if he were to have done so, the governor would have lost confidence in his own defender. Over the years, the close tie between attorney and client developed further with reforms in English COMMON LAW.

Because the attorney-client privilege often balances competing interests, it defies a rigid definition. However, one often-cited characterization was set forth in United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950). The court articulated five requirements: first, the person asserting the privilege must be a client, or must have sought to become a client at the time of disclosure; second, the person connected to the communication must be acting as a lawyer; third, the communication must be between the lawyer and the client exclusively—no non-clients may be included in the communication; fourth, the communication must have occurred for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime; fifth, the privilege may be claimed or waived by the client only (usually, as stated above, through counsel).

Sometimes, even when all five of the United Shoe requirements have been met, courts will compel disclosure of the information sought. They base exceptions to the privilege on Rule 501 of the FEDERAL RULES OF EVIDENCE, which states that "the recognition of a privilege based on a confidential relationship … should be determined on a case-by-case basis." Courts weigh the benefits to be gained by upholding the privilege (that is, preserving the confidence between attorney and client) against the harms that might be caused if they deny it (that is, the loss of information that would be valuable to the opposing party).

Courts have declared that the fact of an attorney-client relationship itself need not always remain privileged information (National Union Fire Insurance Co. of Pittsburgh v. Aetna Casualty & Surety Co., 384 F.2d 316 [5th Cir. 1967]); the privilege may be upheld, however, if the very existence of an attorney-client relationship could prove to be incriminating to the client (In re Michaelson, 511 F.2d 882 [9th Cir. 1975], cert. denied, 421 U.S. 978, 95 S. Ct. 1979, 44 L. Ed. 2d 469 [1975]). The attorney-client privilege does not always protect the client's name or the amount paid to an attorney (Wirtzv. Fowler, 372 F.2d 315 [5th Cir. 1966]). Further, the attorney's perception of the client's mental competency will not always be protected (United States v. Kendrick, 331 F.2d 110 [4th Cir. 1964] [holding that attorney's testimony that client was responsive, and logical in conversation and reasoning, and that he understood that the proceedings, did not address confidential matters]).

In general, exceptions to the attorney-client privilege can prove problematic to criminal defense attorneys, who try to keep a client's potentially incriminating disclosures confidential. One exception, however, is intended to protect attorneys: Meyerhofer v. Empire Fire & Marine Insurance Co., 497 F.2d 1190 (2d Cir. 1974), cert. denied, 419 U.S. 998, 95 S. Ct. 314, 42L. Ed. 2d 272 (1974), held that an attorney may circumvent the privilege if revealing information would relieve him or her of accusations of wrongdoing.

A client is not always a person; a corporation can be a client and can have a right to the attorney-client privilege. The U.S. Supreme Court's decision in Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), ensured greater protection for confidential information between a corporation and its lawyers. In the mid-1970s, Upjohn Company faced accusations of making questionable payments to officials of foreign governments in order to secure business from those governments. In response to those accusations, Upjohn authorized its corporate attorneys to conduct investigations of foreign payments. When the INTERNAL REVENUE SERVICE (IRS) issued a summons for the investigative documents that Upjohn had left to its lawyers, Upjohn refused to comply with the request. Upjohn argued that the documents were privileged. The U.S. Supreme Court ruled in favor of Upjohn, and this decision became the standard for determining the nature of services—either legal or business—provided by the corporate attorney.

By the early 1990s, the attorney-client privilege was narrowed by federal guidelines that were intended to combat MONEY LAUNDERING. The federal government, in conjunction with President GEORGE H.W. BUSH'S crackdown on drug trafficking, pressed an IRS policy that would deter drug dealers and other criminals from disguising profits. The law required attorneys to disclose to the government any cash payment in excess of $10,000, as well as the name of the client making the payment (26 U.S.C.A. § 6050 I).

In United States v. Leventhal, 961 F.2d 936 (11th Cir. 1992), Robert Leventhal, an attorney in Florida, refused to disclose to the IRS the names of clients who had paid him over $10,000 in cash. Leventhal's clients had wished to remain anonymous, and Leventhal argued that the attorney-client privilege gave them that right. Leventhal cited the Florida Rules of Professional Conduct, which require disclosure of confidential client information only in rare circumstances. The federal government sued Leventhal. The court ruled that disclosing the clients' identities revealed only the existence of an attorney-client relationship, a simple factual matter that is not within the scope of the privilege. Therefore, Leventhal was compelled to reveal the sources of the payments.

The U.S. Court of Appeals for the Sixth Circuit followed Leventhal in United States v. Ritchie, 15 F.3d 592 (1994), cert. denied, 513 U.S. 868, 115 S. Ct. 188, 130 L. Ed. 2d 121 (1994). Attorney Robert Ritchie had challenged the same IRS policy, but the court noted that Congress gave the IRS broad powers to ensure compliance with the tax code. Appeals court judge Alice M. Batchelder held that there was no "constitutionally protected liberty interest in spending large amounts of cash without having to account for it."

Attorneys have decried the federal government's position in such cases, but the attorney-client privilege remains useful as a defensive measure in more general circumstances. The privilege remains an exception to the general rule that individuals must testify to all facts within their knowledge. Rooted in ancient principles, it fosters trust within this important relationship and helps attorneys to develop fully their clients' cases by encouraging complete disclosure of relevant information.

The U.S. Supreme Court declined the opportunity to further narrow the attorney-client privilege in Swidler & Berlin v. U.S., 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (U.S. 1998), which raised the question of whether the attorney-client privilege survived the death of the client, and thus whether following the client's death the attorney could be compelled to disclose information that was protected as confidential while the client was still alive.

The dispute arose from the investigation conducted by the Office of the Independent Counsel into the 1992 firing of several White House Travel Office employees, amid allegations of theft and kickbacks from air-charter companies. Deputy White House counsel Vincent Foster had met with a private attorney to seek LEGAL REPRESENTATION concerning the travel-office controversy, which the American press had since branded Travelgate. The attorney took handwritten notes at the meeting. Nine days later, Foster committed suicide.

Subsequently, a federal GRAND JURY, at the request of the Office of the Independent Counsel, issued subpoenas for the handwritten notes as part of a new investigation into whether crimes had been committed in obstructing the earlier investigations into the travel-office firings. Foster's attorneys moved to quash the subpoena on the grounds that they were protected from disclosure by the attorney-client privilege.

The federal district court ruled that the notes were still protected by privilege, and it denied enforcement of the subpoenas. In reversing that ruling, the Court of Appeals recognized that most courts assume that the privilege survives death, but noted that such references usually occur in the context of the well-recognized testamentary exception to the privilege allowing disclosure for disputes among the client's heirs. In re Sealed Case, 124 F.3d 230 (D.C. Cir. 1997). The court said that the risk of posthumous revelation, when confined to the criminal context, would have little or no chilling effect on client communication, but that the costs of protecting communications after death would be high. Concluding that the privilege is not absolute under such circumstances, and that a BALANCING test should apply instead, the appeals court recognized a posthumous exception to the attorney-client privilege for communications in which the relative importance to particular criminal litigation is substantial.

The U.S. Supreme Court reversed, noting that courts generally presume that the attorney-client privilege extends beyond the death of the client, even in the criminal context, and that, at the very least, the burden was on the Office of the Independent Counsel to show that reason and experience required a departure from that rule. The Office of the Independent Counsel had failed to make a sufficient showing to overturn the common law rule that is embodied in the prevailing case law.

"Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel," the Court wrote."While the fear of disclosure … may be reduced if disclosure is limited to posthumous disclosure in a criminal context," the Court continued, "it seems unreasonable to assume that it vanishes altogether." The Court emphasized that "[c]lients may be concerned about reputation, civil liability, or possible harm to friends or family," and thus "[p]osthumous disclosure of such communications may be as feared as disclosure during the client's lifetime."

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