Attorney-Client Privilege

Definition

Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret. 

The privilege is asserted in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath. 

Attorney-Client Relationship 

This privilege exists when there is an attorney-client relationship

Prospective Clients

Under the Model Rules of Professional Conduct, the attorney-client privilege exists for a potential client. Under Togstad v. Vesely, 291 N.W.2d 686 (1980), a non-client can claim to be a prospective client if: 1) the non-client seeks legal advice, 2) then the non-client reasonably relies on that advice as legal advice, and 3) the attorney does not attempt to dissuade the non-client from relying on the advice.

If the non-client is considered a prospective client under Togstad, then the attorney-client privilege will extend to that prospective client.

Further Reading

For more on the attorney-client privilege, see this Cornell Law Review article, this Fordham Law Review article, and this Pepperdine Law Review article.