Attorney-client privilege protects confidential communications between a lawyer and their client that relate to the client's seeking of legal advice or services. This protection extends to any information exchanged during these privileged communications, encompassing not only verbal discussions but also written correspondence, emails, text messages, and other forms of communication.
The privilege belongs to the client, meaning they have the authority to waive or invoke it. See In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998). The privilege can be affirmatively raised in the face of a legal demand for the communications, such as a discovery request, during a deposition, or in response to a subpoena.
The privilege is not absolute, as there are certain exceptions that may warrant the disclosure of privileged information. For instance, if a client seeks legal advice to further a criminal act or fraud, the privilege does not apply. Additionally, if a third party is present during the privileged communication, the confidentiality may be compromised unless that third party is essential to the attorney-client relationship, such as an interpreter. Attorney-client privilege can also be waived if a client uses their attorney’s advice as a defense. Communications relating solely to non-legal business matters are not privileged. See Neuder v Battelle Pac. Northwest Nat’l Lab., 194 F.R.D. 289, 293 (D.D.C. 2000). Additionally, some courts limit the attorney-client privilege if there exists an overriding public policy interest, such as protecting a child. See Matter of Jacqueline F, 47 N.Y.2d 215, 417 N.Y.S.2d 884 (N.Y. 1979).
Under Federal Rules of Evidence 502, the privilege is not waived if:
- The disclosure was inadvertent;
- The holder of the privilege took reasonable steps to prevent disclosure; and
- The holder promptly took reasonable steps to rectify the error.
The concept of attorney-client privilege does not typically extend to communications between an attorney and an expert witness.
[Last updated in August 2023 by Jim Robinson, Esq., JurisPro Expert Witness Directory]