ATTORNEY-CLIENT PRIVILEGE
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 (Wirtz
v. 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, 42
L. 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 attorneyclient
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 attorneyclient
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 attorneyclient
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 traveloffice
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 attorneyclient
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.”
FURTHER READINGS
Epstein, Edna Selan. 2001. The Attorney-Client Privilege and
the Work-Product Doctrine. 4th ed. Chicago: Section of
Litigation, American Bar Association.
Freedman, Monroe H. 1990. Understanding Lawyers’ Ethics.
New York: Bender.
Gillers, Stephen. 1979. The Rights of Lawyers and Clients.
1979. New York: Avon Books.
Noona, John M., and Michael A. Knoerzer. 1989. “The Attorney-
Client Privilege and Corporate Transactions:
Counsel as Keeper of Corporate Secrets.” In The Attorney-
Client Privilege Under Siege. Tort and Insurance
Practice. Lake Buena Vista, Fla.,May 10–14.
Rice, Paul R. 1999. Attorney-Client Privilege in the United
States. 2d ed.Minneapolis:West Group.
Tinkham, Thomas, and William J. Wernz. 1993. Attorney-
Client Privilege, Confidentiality, and Work Product Doctrine
in Minnesota. Minneapolis: Dorsey & Whitney.
CROSS-REFERENCES
Attorney Misconduct; Drugs and Narcotics; Ethics, Legal;
Legal Representation; Model Rules of Professional Conduct.
