January 01, 2019 Feature

Attorney-Client Privilege

Lawyers who don’t stay on the safe road when using this evidentiary gift may end up lost .

John M. Barkett

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The attorney-client privilege is a crown jewel of the legal profession. Many lawyers don’t understand its contours, yet know that when they provide legal advice to a client, that information is protected from disclosure by common law—or, depending on the jurisdiction, by statutory or procedural rules—as long as the privilege has not been waived and no exception applies.

But the attorney-client privilege is inconsistent with the truth-seeking function. It conceals information even when that information may be essential to determining facts. Thus, it is not unusual to read judicial decisions narrowing its application. Nor is it surprising that lawyers have had to confront numerous forks in the road in deciding when to assert the privilege or how to protect information as privileged.

Two of those forks changed the face of privilege law in the federal courts. In 1981, the U.S. Supreme Court decided Upjohn Co. v. United States, 449 U.S. 383. And in 2008, Congress adopted Rule 502 of the Federal Rules of Evidence. If the privilege could speak, it would say that those decisions by the Supreme Court and by Congress were watershed moments. But in the same breath, it would add that organizational depositions, selective waiver, common interest legal groups, and ethics rules present issues of privilege protection or privilege waiver that are challenging to follow even with a road map.

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