The attorney-client privilege, which originated in Roman and canon law,
"is the oldest of the privileges for confidential communications known
to the common law." Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). Its
purpose is "to encourage full and frank communications between attorneys
and their clients," and it exists to protect" not only the giving of
professional advice to those who can act on it but also the giving of
information to the lawyer to enable him to give sound and informed
advice." Id. at 389-91.
The Court also said, "the privilege recognizes that sound legal advice
or advocacy serves public ends and that such advice or advocacy depends
upon the lawyer's being fully informed by the client." Id. at 389, and
in Hunt v. Blackburn, 128 U.S. 464, 470 (1888) it explained that the
privilege is "founded upon the necessity, in the interest and
administration of justice, of the aid of persons having knowledge of the
law and skilled in its practice, which assistance can only be safely and
readily availed of when free from the consequences or the apprehension
BASIC RULES REGARDING ATTORNEY-CLIENT PRIVILEGE
FIRST, the attorney-client privilege protects confidential
communications between an attorney and his or her client "made for the
purpose of furnishing or obtaining professional legal advice and
assistance." In re LTV Securities Litigation, 89 F.R.D. 595, 600
The privilege applies in both directions: to communications from the
client to the attorney, and to communications from the attorney to the
client. Schwimmer v. U.S., 232 F.2d 855 (8th Cir.), cert. denied, 352
U.S. 833 (1956); Green v. IRS, 556 F.Supp. 79, 85 (N.D.Ind. 1982),
afford without op., 734 F.2d 18 (7th Cir. 1984).
It applies with equal force to conversations and correspondence among a
client's attorneys, whether or not the client is present during the
conversation or receives a copy of the correspondence. See, e.g., Natta
v. Zletz, 418 F.2d 633, 637 (7th Cir. 1969) (correspondence between
house and outside counsel fall within the privilege); Chicano Lawyers
Committee v. City of Chicago, No. 76 C 1982, slip. op. (N.D.Ill. Apr.
1981) (privilege extends to meeting between "attorneys discussing the
giving of legal advice or assistance in anticipation of pending
litigation"); Green, 556 F.Supp. at 85 (privilege applies equally to
inter-attorney communications); Foseco Int'l Ltd. v. Fireline Inc., 546
F.Supp. 22, 25 (N.D.Ohio 1982) (communications between patent counsel
and local counsel were confidential and, therefore, subject to the
privilege); In re D.H. Overmyer Telecasting Co., 470 F.Supp. 1250, 1254-
55 (S.D.N.Y. 1979) (conversations between in-house and outside counsel
protected by privilege); Burlington Inc. v. Exxon Corp., 65 F.R.D. 26,
36 (D.Md. 1974) (confidential communications between in-house and
outside counsel, as well as between two outside lawyers representing the
same client, fall within scope of privilege).
SECOND, what is protected by the privilege is the communications
themselves within the confidential setting. "The protection of the
privilege extends only to communications and not to facts." Upjohn at
395 (quoting Philadelphia v. Westinghouse Electric Corp., 205 F. Supp.
830, 831 (E.D.Pa. 1962)), and investigators are free to question
individuals who communicate with counsel about unprivileged facts known
to them. But arguments that the information may more conveniently be
obtained from the privileged communication are unavailing because "such
considerations of convenience do not overcome the policies served by the
attorney-client privilege." Id. at 396.
For this reason, even if the information discussed is in the public
domain, the fact of communicating about it with or among counsel is
privileged. In Lehman v. Superior Court, 81 Cal.App. 3d 90 (1978), for
example, the court explained, "if the client discloses certain facts to
a third person and subsequently advises his lawyer of those same facts
in the form of a confidential communication, there has been no waiver
since, obviously, the client has not disclosed to the third person the
confidential communication to the attorney, i.e., had not disclosed that
certain information had been communicated to the attorney." Id. at 97.
And by necessity, the privilege extends as well to written materials
reflecting the substance of an attorney-client communication. See Green,
556 F.Supp. 85 (privilege applies to "an attorneys notes containing
information derived from communications to him from a client. That
information is entitled to the same degree of protections from
disclosure as the actual communication itself."); accord Natta, 418 F.2d
at 637 n.3 ("insofar as inter-attorney communications or an attorney's
notes contain information which would otherwise be privileged as
communications to him from a client, that information should be entitled
to the same degree of protection from disclosure. To hold otherwise
merely penalizes those attorneys who write or consult with additional
counsel representing the same client for the same purposes As such it
would make a mockery of both the privilege and the realities of current
legal assistance"); Smith v. MCI Telecommunications Corp., 124 F.R.D.
665, 687 (D.Kan. 1989).
THIRD, the attorney-client privilege also covers communications between
agents of a client and the client's attorney, again, as long as the
communication was intended to be confidential. "[I]f the purpose of the
communication is to facilitate the rendering of legal services by the
attorney, the privilege may also cover communications between the client
and his attorneys representative, between the client's representative
and the attorney, and between the attorney and his representative."
Golden Trade v. Lee Ansarel Co., 143 F.R.D. 514, 518 (S.D.N.Y. 1992).
Courts define the term "agent" broadly to encompass a range of
individuals, from expert consultants to relatives to insurance agents,
whose presence is necessary to the purpose of the meeting and to the
rendering of advice. See, e.g:, Kevlick v. Goldstein, 724 F.2d 844, 849
(lst Cir. 1984) (client's father); U.S. v. Biros, 459 F.2d 639, 643 (1st
Cir.) (cllent's father), cert. denied sub nom., Raimondi v. U.S., 409
U.S. 847 (1972); Benedict v. Amaducci, No. 92 Civ 5239 (KMW), 1995 U.S.
Dist. LEXIS 573, 3-4 (S.D.N.Y. Jan. 18, 1995) (consultant); Foseco
Int'l. v. Fireline Inc., 546 F.Supp. 22, 25 (N.D.Ohio 1982) (patent
agent); Miller v. Haulmark, 104 F.R.D. 442, 445 i (E.D.Pa. 1984)
(insurance agent); Harkobusic v. General American, 31 F.R.D. 264, 265
(W.D.Pa. 1962) (brother-in-law).
Nor must the client be present at a meeting between his agents and his
lawyer for the communications during the meeting to be protected by the
attorney-client privilege. Thus, for example, in Foseco, 546 F.Supp. 22,
the court held that a meeting between the plaintiff's patent agent and
the plaintiff's lawyer fell within the scope of the attorney-client
privilege, even though the Plaintiff was not present at the meeting.
As the court explained, "these communications are in essence
communications between the client and the client's attorney. The British
patent agent acted at the direction and control of the plaintiff.
Further, through the agency of its patent agent, the plaintiff sought
from the U.S. patent counsel legal advice and assistance concerning a
U.S. patent application proceeding. Had the communications been made
between the plaintiff and its U.S. counsel, the privilege would have
The Court finds that, given the purpose of the attorney-client privilege
to encourage full and frank communication between attorneys and their
clients, the communications made between [plaintiff], through its patent
agent, and its U.S. patent counsel are privileged. The communications
involved in this case were made in furtherance of the rendition of
professional legal services to the client and were reasonably necessary
for adequate legal assistance. Id. at 26.
See also Benedict, 1995 U.S. Dist. LEXIS 573, at 3-4 (Conversations
between plaintiffs' counsel and consultant retained by plaintiffs to
prepare them for prospect of litigation and assist with litigation "are
protected by the privilege, because [the consultant] was acting as
plaintiffs' representative during those consultations."); Farmaceutisk
Laboratorium v. Reid Rowell. Inc., 864 F.Supp. 1274 (N.D.Ga. 1994)
(independent consultant was so meaningfully ; associated with
corporation that it could be considered insider for purposes of
privilege); American Colloid Co. v. Old Republic Ins. Co., 1993 U.S.
Dist LEXIS 7619, 2-3 (N.D.Ill. June 1993) (communications between
plaintiff's agents and plaintiff's counsel are privileged); Carte
Blanche Ltd. v. Diners Club Inc., 1.30 FARAD. 28, 33-34 (S.D.N.Y. 1990)
(correspondence between client's agent and client's counsel protected by
attorney-client privilege), subsequent opinions rev'd on other Grounds,
2 F.3d 24 (2d Cir. 1993).
FOURTH, the determination whether there exists an attorney-client
relationship depends on the understanding of the client. "The
professional relationship for purposes of the privilege hinges upon the
belief that one is consulting a lawyer and his intention to seek legal
advice. Wylie v. Marley Co., 891 F.2d 1463, 1471 (10th Cir. 1989).
Accordingly, the privilege applies to confidential communications
between an individual and a person he reasonably believes to be his
attorney, even if the attorney ultimately elects not to represent the
client, and even if the attorney is not a member of the bar. See U.S.
v. Mullen, 776 F.Supp. 620, 621 (D. Mass. 1991) ("the attorney-client
privilege may apply to confidential communications made to an accountant
when the client is under the mistaken, but reasonable, belief that the
professional from whom legal advice is sought is in fact an attorney.");
U.S. v. Tyler, 745 F.Supp. 423, 425-26 (W.D. Mich. 1990); U.S. v. Boffa,
513 F.Supp. 517, 523 (D. Del. 1981).
FINALLY, it is important to note that the attorney-client privilege
affords absolute protection to privileged communications. As the Ninth
Circuit explained in Admiral Insurance Co. v. U.S. District Court, 881
F.2d 1486 (9th Cir. 1989), "the principal difference between the
attorney-client privilege and the work-product doctrine, in terms of the
protections each provides, is that the privilege cannot be overcome by a
showing of need, whereas a showing of need may justify discovery of an
attorney's work product. Id. at 1494. The attorney-client privilege
cannot be vitiated by a claim that the information sought is unavailable
from any other source. Id. at 1495. "Such an exception would either
destroy the privilege or render it so tenuous and uncertain that it
would be little better than no privilege at all." Id.
The privilege applies to confidential communications between government
attorneys and their clients in the same manner in which it applies to
communications between private counsel and their clients. See Green, 556
F.Supp. at 85 ("privilege unquestionably is applicable to the
relationship between government attorneys and administrative personnel")
; SEC v. World-Wide Coin, 92 F.R.D. 65, 67 (N.D.Ga. 1981) (privilege
applied to communications between SEC lawyers and staff); Jusiter
Painting v. U.S., 8 F.R.D. 593, 598 (E.D.Pa. 1380) ("Courts generally
have accepted that attorney-client privilege applies in the governmental
COMMON INTEREST PRIVILEGE.
The "common interest" privilege enables counsel for clients with a
common interest "to exchange privileged communications and attorney work
product in order to adequately prepare a defense without waiving either
privilege." Haines v. Liggett Group Inc., 975 F.2d 81, 94 (3d Cir.
1992); see also Walter v. Financial Corp. of America, 828 F.2d 579, 583
n.7 (9th Cir. 1987) ("communications by a client to his own lawyer
remain privileged when the lawyer subsequently shares them with co-
defendants for purposes of a common defense") (quoting U.S. v.
McPartlin, 595 F.2d 1321, 1326 (7th Cir. 1979), cert. denied, 444 U.S.
833 (1979)); In re Grand Jury Subpoena Duces Tecum Dated Nov. 16, 1974,
406 F. Supp. 38l, 389 (S.D.N.Y. 1975) ("the attorney-client privilege
covers communications to a prospective or actual co-defendant's attorney
when those communications are engendered solely in the interests of a
joint defense effort.").
The privilege encompasses notes and memoranda of statements made at
meetings among counsel and their clients with a common interest, as well
as the statements themselves. In re Grand Jury Subpoena, 406 F. Supp.
381, 384-94 (S.D.N.Y. 1975). The rationale for this well-accepted
privilege is readily apparent:
"Whether an action is ongoing or contemplated, whether the jointly
interested persons are defendants or plaintiffs, and whether the
litigation or potential litigation is civil or criminal, the rationale
for the joint defense rule remains unchanged: persons who share a common
interest in litigation should be able to communicate with their
respective attorneys and with each other to more effectively prosecute
or defend their claims." In re Grand Jury Subpoenas, 89-4, 902 F.2d
244, 249 (4th Cir. 1990). See also 2 Stephen A. Saltzberg, et al.,
Federal Rules of Evidence Manual 599 (6th ed. 1994) ("In many cases it
is necessary for clients to pool information in order to obtain
effective representation. So, to encourage information-pooling, the
common interest rule treats all involved attorneys and clients as a
single attorney-client unit, at least insofar as a common interest is
Thus, the common interest privilege may be asserted with respect to
communications among counsel for different parties if "(1) the
disclosure is made due to actual or anticipated litigation or other
adversarial proceedings; (2) for the purposes of furthering a common
interest; and (3) the disclosure is made in a manner not inconsistent
with maintaining confidentiality against adverse parties." Holland v.
Island Creek Corn., 885 F. Supp. 4, 6 (D.D.C. 1995); see also U.S. v.
Bav State Ambulance, 874 F.2d 20, 28 (lst Cir. 1989); In re Bevill,
Bresler & Schulman, 805 F.2d 120, 126 (3d Cir. 1986); In re LTV Sec.
Litig., 89 F.R.D. at 604. It is not necessary for actual litigation to
have commenced at the time of the meeting for the privilege to be
applicable. U.S. v. Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989), cert.
denied, 502 U.S. 810 (1991).
If these circumstances are present, the communications are protected.
Indeed, the privilege covers communications not only among counsel for
clients with common interests but also between an individual and an
attorney for a different party with a common interest. See Schwimmer id.
(it is not necessary for attorney representing the communicating party
to be present when the communication is made to the other party's
attorney); McPartlin, 595 F.2d at 1335 (applying common interest rule to
communications between client and agent for attorney of person with
common interest); Saltzberg at 600 ("The fact that clients are present
at a consultation in the common interest certainly should not preclude
the application of the common interest ruie, so long as the statements
are otherwise intended to remain confidential and are made for purposes
of obtaining legal advice in the common interest.").
Of course, no two individuals or entities' interests will be totally
congruent, and it is not necessary for every party's interest to be
identical for the common interest privilege to apply; rather, the
parties must have a "common purpose." U.S. v. McPartlin, 595 F.2d 1321,
1336-37 (7th Cir. 1979), cert. denied, 444 U.S. 833 (1979). The question
my of whether the parties share a 'common interest' "must be evaluated
as of the time that the confidential information is disclosed." Holland,
885 F. Supp. at 6. While it is conceivable that that interest could
diverge --indeed, that is one reason for separate counsel -- the
possibility of a future divergence in no respect undermines the
privilege. And it is settled that private and government counsel may
share a common interest. In U.S. v. American Tel. & Tel. Co., 642 F.2d
1285, 1300-01 (D.C.Cir. 1980), for example, the court applied the
"common interest" privilege to materials shared between a private
company, MCI, and the government, and held that MCI did not waive the
work-product privilege by sharing documents with the govt in aid of a
WORK PRODUCT DOCTRINE.
"The work product doctrine is an independent source of immunity from
discovery, separate and distinct from the attorney-client privilege." In
re Grand Jury, 106 F.R.D. 255, 257 (D.N.R. 1985). It is "broader than
the attorney-client privilege; it protects materials prepared by the
attorney, whether or not disclosed to the client, and it protects
material prepared by agents for the attorney." In re Grand Jury
Proceedings, 601 F.2d 162, 171 (5th Cir. 1979).
Unlike the attorney-client privilege, which "is not limited to
communications made in the context of litigation, or even a specific
dispute," Coastal States Gas Comm. v. Dept. of Energy, 617 F.2d 854, 862
(D.C. Cir. 1980) -- and see Flynn v. Church of Scientology Int'l, 115
F.R.D. 1,3 (D.Mass. 1986) ("one who consults a lawyer with a view to
obtaining professional legal services from him is regarded as a client
for purposes of the attorney-client privilege.") -- the work-product
doctrine "protects the work of the attorney done in preparation for
litigation..." In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir.
1994). However, litigation need only be contemplated at the time the
work is performed for the doctrine to apply, see Holland, 885 F.Supp. at
7, and the term "litigation" is defined broadly to encompass the defense
of administrative and other federal investigations. See In re Grand Jury
Proceedings, 867 F.2d 539 (9th Cir. 1989) (applying doctrine in context
of grand jury investigation); In re Sealed Case, 676 F.2d 793 (D.C.Cir.
1982) (applying doctrine to documents created by counsel rendering legal
advice in connection with SEC and IRS investigations).
As the Supreme Court observed in Hickman v. Taylor, 329 U.S. 495 (1947),
the work-product doctrine is critical to a lawyer's ability to render
professional services to his client:
"it is essential that a lawyer work with a certain degree of privacy,
free from unnecessary intrusion by opposing parties and their counsel.
Proper preparation It of a client's case demands that he assemble
information, sift what he considers to be the relevant go from the
irrelevant facts, prepare his legal theories and plan his strategy
without undue and needless interference.... This work is reflected of
course, be in interviews, statements, memoranda, correspondence, briefs,
mental impressions, personal beliefs, and countless other tangible and
"Were such materials open to opposing counsel on mere demand, much of
what is now put down in writing would remain unwritten. An attorney's
thoughts, heretofore inviolate, would not be his own. Inefficiency,
unfairness and sharp practices would inevitably develop in the giving of
legal advice and in the preparation of cases for trial. The effect on
the legal profession would be demoralizing. And the interests of the
clients and the cause of justice would be poorly served." Id. at 510-11.
Although "factual" work-product may be discoverable upon a showing of
substantial need for the information sought, the protection afforded to
"opinion" work-product -- which reflects counsel's subjective beliefs,
impressions, and strategies regarding a case -- is nearly absolute. As
the D.C. Circuit explained in In re Sealed Case, 676 F.2d 793, 809-10
(D.C. Cir. 1982), "to the extent that work product reveals the opinions,
judgments, and thought processes of counsel, it receives some higher
level of protection, and a party seeking discovery must show
extraordinary justification." Accord Upjohn, 449 U.S. at 401 (opinion
work product "cannot be disclosed simply on a showing of substantial
need and inability to obtain the equivalent without undue hardship").
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