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Legal Ethics: The Client-Attorney Privilege
By Mark E. Ellis
© 2017, National Business Institute

I. Overview

Contents

I. Overview

II. The Attorney-Client Privilege Compared to the Duty Of Confidentiality and the Work Product Doctrine

III. Elements Of The Attorney-Client Privilege

IV. Notable Exceptions To The Attorney-Client Privilege

V. Privilege Waivers

VI. Privilege Logs

The attorney-client privilege is an evidentiary privilege that protects communications between an attorney (or law firm) and the client; it is held by the client and gives rise to a privilege to refuse to disclose confidential communications between the client and his, her or its lawyer.

The attorney-client privilege is deemed fundamental to the proper functioning of our system of justice. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Brandt v. Smith, 634 F.2d 796, 800 (5th Cir. 1981) (privilege is a product of state and federal common law -- no Constitutional basis); Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992.) The rationale and policy undergirding the privilege is the encouragement of “full and frank communication between attorneys and their clients. . .[to] thereby promote broader public interests in the observance of law and administration of justice.

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.” Upjohn, 449 U.S. at 389; Restatement (3rd) Law Governing Lawyers section 68, comment (c).

Although the attorney-client privilege, like the fiduciary duty of confidentiality, has its roots in the common law, today the attorney-client privilege is generally governed by state statute, and there are few exceptions and those are generally statutory as well. See, e.g., Cal. Evi. Code sections 954, 950 and 910 (comment); U.S. v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-359 (D. Mass. 1950). 15 U.S.C. § 1692f.)

Legal Malpractice AttorneyCo-author of this article, Mark E. Ellis, is the managing partner of Ellis Law Group, LLP recognized by the attorney-ranking firms Best Lawyers and SuperLawyers as one of the nation's leading trial attorneys in the area of legal malpractice defense. See the Mark Ellis Profile for his detailed curriculum vitae.

To access other articles with topic related to this one, go to our Publications page.

The attorney-client privilege, if found applicable, is generally absolute, and it applies broadly in the litigation, as well as non-litigation, contexts. Martin v. Valley National Bank, 140 F.R.D. 291, 306 (S.D.N.Y. 1991). It may be asserted in all proceedings in which testimony may be compelled, including civil, criminal, administrative, regulatory and disciplinary proceedings. See Swidler & Berlin v. United States, 524 U.S. 399, 408-409 (1998).

The privilege applies to legal advice communicated to the client, or confidential information communicated to the attorney by the client, even if litigation is not threatened. See Roberts v. City of Palmdale, 5 Cal.4th 363, 20 Cal. Rptr. 2d 330, 334 (1993).

The privilege is held by the client, who has the sole authority to waive the privilege. Nonetheless, the attorney is required to assert or invoke the privilege when necessary on behalf of the client, even without an express instruction by the client.

There are few exceptions to the privilege. If the privilege applies, compelled disclosure is forbidden regardless of need. In re Grand Jury Invest., 599 F.2d 1224, 1253 (3rd Cir. 1979).

II. The Attorney-Client Privilege Compared To The Duty Of Confidentiality And The Work Product Doctrine

A. The Fiduciary Duty of Confidentiality

The duty of confidentiality arises out of the fiduciary duties owed by the attorney to the client, which are generally viewed as twofold: loyalty and confidentiality.

Like the attorney-client privilege, the duty of confidentiality serves the purpose of contributing to the trust that is the hallmark of the attorney-client relationship whereby the client is able to communicate fully and frankly without the threat of the legally damaging, embarrassing or secret information being shared with others.

The duty of confidentiality is broader than the attorney-client privilege; it is not subject to the same exceptions.  It includes, but its assertion is not limited to, information passed directly to the lawyer by the client; it is not limited to legal advice or communications related simply to legal matters. The duty also applies to communications with only potential clients.  The duty survives the termination of the attorney-client relationship, and even the client’s death.

B. The Attorney Work-Product Doctrine

The attorney work-product doctrine is distinct from the attorney-client privilege and fiduciary duty of confidentiality. The work-product doctrine is narrower than either the attorney-client privilege, or the duty of confidentiality.

Work product is generally defined as some type of writing that reflects an attorney’s impressions, plans, conclusions, opinions, legal research, strategy, theories, or the like, and it is normally absolutely protected from discovery or compelled disclosure.

The work product doctrine also may extend to unwritten opinions or theories of an attorney.  Fireman’s Fund Ins. Co. v. Superior Court, 196 Cal.App.4th 1263, 127 Cal. Rptr. 3d 768, 777-779 (2011). 

Work product protection does not lose its protection because it is communicated to the client.

“Qualified” work product may reflect attorney work or investigation, but which is not the attorney’s “brain work” per se. This work product may not be absolutely protected from disclosure. The boundaries are ambiguous. The doctrine is limited in federal court.  Fed. Rule Civ. Proc. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 510-511 (1947).

Work product belongs to the attorney, not the client.

III. Elements Of The Attorney-Client Privilege

A. Generally

To fall within the attorney-client privilege, the communication must be:

  • Made between a client and a lawyer,
  • In confidence,
  • During the course of the attorney-client relationship, and
  • The communication must be made with the attorney in his or her professional (legal) capacity.

B. Clients

“Clients” may be individuals, corporations, partnerships, limited liability companies, associations, etc., who consult a lawyer in his or her professional capacity, including both persons who are existing clients, and those seeking to become clients.  See Westinghouse Elec. Cor. V. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978).

C. Lawyers

A “lawyer” is defined as a licensed attorney, or someone who the client reasonably believes to be a licensed attorney.

D. Confidential Communications

A communication is protected by the privilege only if it is intended to be confidential -- that is, made with the expectation that it will not be disclosed outside the attorney-client relationship.

    • Communications Between Clients and Attorneys are Presumed Confidential

      Communications between the attorney and client in the course of the professional relationship are generally presumed confidential. The presumption is rebuttable. “Communication” is broadly construed, but the fact that non-privileged facts and information may be communicated between a client and an attorney does not make an otherwise non-privileged fact privileged, even if intended to be so.

    • Dual Purpose Communications

      Dual purpose communications are those which relate both to a privileged communication (e.g. legal advice) and a non-confidential subject (e.g. business advice). Such communications are privileged only if the dominant purpose is to further the objectives of the attorney-client relationship. See Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725, 101 Cal. Rptr. 3d 758, 766 (2009).

    • Communications with Third Parties

      Attorney-client confidential communications include those made to third parties if reasonably necessary to accomplish the purpose of transmitting the information between attorney and client, or accomplishing the purpose for which the attorney was hired. This includes confidential communications to agents of the client, or agents of the lawyer, such as associate attorneys, paralegals, legal assistants, and the like. John v. United States, 449 U.S. 383, 391-393 (1981); National Steel Products Co. v. Superior Court, 164 Cal.App.3d 476, 210 Cal.Rptr. 535, 539 (1985); Hoiles v. Superior Court, 157 Cal.App.3d 1192, 1200, 204 Cal.Rptr. 111, 116 (1984).

      The privilege may apply to the joint defense of multiple clients.  Waller v. Financial Corp. of America, 828 F.2d 579, 583, fn. 7 (9th Cir 1987).

    • Non-Confidential Information

    Non-confidential information is not protected by the attorney-client privilege, even if transmitted between attorney and client, and even if intended to be confidential; this includes:

    a. Foundational facts, such as, e.g.:

    • whether an attorney-client relationship exists;
    • whether information was transmitted in the course of that relationship;
    • the date of an otherwise confidential communication; and
    • the date the attorney-client relationship was formed “when meetings took place.
    b. If the underlying facts are not privileged, the transfer between client and attorney will not make them so.

    c. The client’s identity is normally not privileged (but there are circumstances where it may be protected). d. The terms of a fee agreement may be protected. In California, they are protected by statute.  Business & Professions Code § § 6149 and 6068. But see United States v. Blackman,72 F.3d 1418, 1423-1424 (9th Cir 1995) (nature of fees arrangement and client identity not protected). A fact or underlying statement not identified as protected does not become so because it was communicated subsequently to an attorney. But information intended to be confidential is protected by the attorney-client privilege if disclosed by a potential client in initial consultations, even if the attorney is not ultimately retained.  Barton v. United States, 410 F.3d 1104, 1109-1112 (9th Cir. 2005) People v. Gionis, 9 Cal.4th 1196, 1205, 40 Cal.Rptr. 456, 462 (1995). Statements made to an attorney after representation is declined are not privileged. People v. Gionis, at 1211. The privilege may apply to communications made during prelitigation investigations-- look to the dominant purpose of the lawyer’s participation and communications -- legal advice given? See Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal.App.4th 110, 122 Cal. Rptr. 844, 852 (1997). The privilege covers an investigator working with an attorney.  Kaiser Foundation Hospitals v. Superior Court, 66 Cal.App.4th 1217, 1227-1228, 78 Cal.Rptr.2d 543, 548-550 (1998).

    IV. Notable Exceptions To The Attorney-Client Privilege

    A. Crime Fraud Exception

    Where an attorney’s services are sought to enable or aid anyone in the commission of a crime or fraud, the privilege does not apply.  In re Grand Jury Procs., 867 F.2d 539, 541 (9th Cir. 1989).

    B. Violent Crime Exception

    In California, the attorney has the option to reveal that the client is reasonably likely to commit a violent criminal act. The attorney must also disclose to the client that he will disclose. See Business & Professions Code § 6068(e)(2); Cal. Rule Prof. Conduct 3-100(B).

    A. Lawyer's Breach of Duty

    The attorney-client privilege is waived when the client sues his or her attorney; the attorney is allowed to defend himself or herself by disclosing otherwise attorney-client privileged information.  Dietz v. Meisenheimer & Herron, 177 Cal.App.4th 771, 786, 99 Cal.Rptr.3d 464, 475 (2009).

    B. Waiver for Fee Disputes with Client (See Above)

    In re Rindlisbacher, 275 Bankruptcy Rptr. 180, 183 (9th Cir. BAP 1998).

    C. Attorney Waiver

    Attorney as (1) attesting witness to a will, or (2) attorney’s testimony related to a deceased client’s intent under testamentary documents.

    D. Express Waiver by the Client

    The attorney-client privilege may be waived by the holder (the client) if waiver is voluntary. Failing to timely raise the privilege, or a failure to assert it may constitute waiver. Coerced disclosure does not constitute a waiver.

    E. Inadvertent Disclosure

    Inadvertent disclosure is generally not deemed a waiver “especially during discovery. State Comp. Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644, 654, 82 Cal.Rptr. 799, 805-806 (1999).

    “Claw back” where disclosure is inadvertent.

    F. Unnecessary Disclosure

    Unnecessary disclosures may constitute waiver where a significant part of the privileged communication is disclosed (reveals specific content).

    G. Waiver by Assertion of Advice of Counsel

    H. Waiver by Untimely Discovery Responses

    I. Fundamental Fairness (Implied Waiver)

    Where it would be unfair to permit a lawsuit to proceed, or the attorney cannot defend it because the client will not waive the privilege, the third-party claims against the attorney may be barred, as the attorney is unable to mount a defense without a waiver. McDermot, Will & Emery v. Superior Court, 83 Cal.App.4th 378, 383 - 385, 99 Cal.Rptr. 622, 625-627 (2000).

    VI. Privilege Logs

    Privilege logs must supply sufficient information to apprise the other side of the merits of the claim of privilege. Each document for which the privilege is claimed should indicate the date of the document, who the document is between, and the general subject matter. Where the privilege is timely claimed, an inadequate privilege log does not waive the privilege.  Catalina Island Yacht Club v. Superior Court, 242 Cal.App.4th 1116, 1126, 195 Cal.Rptr. 694, 700 (2015). _____________________________________________________________
    This article is not to be considered legal advice by the author or Ellis Law Group, LLP. Any person or agency with specific legal questions must consult with the legal counsel of their choice.