Attorney-Client Privilege

Attorney-client privilege is one of the oldest evidentiary protections in the common-law tradition, tracing in English practice to the Elizabethan era. It shields communications—oral, written, or electronic—exchanged in confidence between a lawyer and a client for the purpose of obtaining or giving legal advice. The privilege belongs to the client, who alone may waive it, and it survives the termination of the representation and, in most U.S. jurisdictions, the death of the client (see Swidler & Berlin v. United States, 524 U.S. 399 (1998)).

For the privilege to attach, courts typically require: (1) a communication, (2) made in confidence, (3) between a client (or prospective client) and an attorney acting as such, (4) for the purpose of legal advice, and (5) not waived. Underlying facts are not privileged—only the communication itself. Disclosure to third parties generally destroys confidentiality, though the common-interest and joint-defense doctrines preserve protection among aligned parties.

Key limits include:

• Crime-fraud exception: communications made to further an ongoing or future crime or fraud are not protected.
• Waiver: voluntary disclosure, or putting privileged advice "at issue" in litigation, waives the privilege.
• Corporate context: in the United States, Upjohn Co. v. United States, 449 U.S. 383 (1981), extended privilege to communications between corporate counsel and employees within the scope of their duties, displacing the narrower "control group" test.

The privilege is distinct from the work-product doctrine (protecting materials prepared in anticipation of litigation, recognized in Hickman v. Taylor, 329 U.S. 495 (1947)) and from the broader ethical duty of confidentiality under rules such as ABA Model Rule 1.6.

Internationally, the concept is recognized as legal professional privilege in the UK, Canada, and Australia. EU law recognizes it for communications with independent outside counsel but, under Akzo Nobel v. Commission (Case C-550/07 P, 2010), excludes in-house lawyers in EU competition proceedings—a notable divergence from U.S. practice.