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Attorney Client Privilege

Definition - What does Attorney Client Privilege mean?

Attorney Client Privilege, established in early English common law, allows for the confidential exchange of information between a lawyer and their client. It exists when a client is seeking legal advice from a legal professional, the communication relates to that purpose, it is made in confidence by the client and is therefore permanently protected from disclosure by the attorney (unless the client decides to waive that protection).

The basic premise of the attorney client privilege is that a client will be more likely to disclose necessary information for a case to an attorney if they know the attorney is not allowed to disclose the information to any other party or to the court. Consider, however, the client, not the attorney, has the legal authority to determine what information is confidential and should therefore remain privileged.

Requirement for attorney client privilege

The requirements for attorney client privilege were outlined in United States v. United Shoe Machinery Corp in 1950. Under attorney client privilege the following must be true:

  • The communication must occur solely between the attorney and the client.
  • The information must be shared with a legal attorney.
  • Information must not be for the purpose of committing a criminal act such as fraud but rather only for legal purposes in an effort to secure legal information.
  • The person asserting the attorney client privilege must be a client of the attorney.
  • The client is the only person who may waive the privilege.

State laws vary. In some cases the court may also force disclosure of certain pieces of information if they believe "great harm is caused to the other side by upholding the privilege." In recent years the federal government has also attempted to limit this privilege, especially as they try drug cases. The attorney client privilege, however, remains one of the most important boundaries of the legal relationship between a lawyer and their client.

Waiving attorney client privilege

Clients may choose to waive the attorney client privilege at any time. Other reasons it could be waived or exceptions made to the privilege include the death of the client, when there is a fiduciary duty on the part of a corporation to the corporation's shareholders, when a client is seeking legal advice for a crime or to commit fraud, or two parties are using the same attorney and choose to waive their right under the common interest exception.

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