Client privilege — most commonly attorney-client privilege or legal professional privilege — is a rule of evidence that shields confidential communications made between a client and their lawyer for the purpose of seeking or giving legal advice. The privilege belongs to the client, not the lawyer, meaning only the client can waive it. Its rationale is to encourage full and frank disclosure so that legal advice is informed and effective.
The doctrine has deep common-law roots and is recognized in most jurisdictions, though scope varies:
- In the United States, the privilege is recognized at both federal and state levels and was articulated in cases such as Upjohn Co. v. United States (1981), which extended it to communications with corporate employees acting on behalf of the company.
- In England and Wales, legal professional privilege covers two limbs: legal advice privilege and litigation privilege, refined in cases including Three Rivers District Council v Bank of England (No 6) (2004).
- In the European Union, the AM&S Europe v Commission (1982) and Akzo Nobel v Commission (2010) rulings limited privilege in competition proceedings to communications with independent (external) lawyers admitted to an EEA bar, excluding in-house counsel.
Privilege typically does not protect:
- Communications made in furtherance of a crime or fraud (the crime-fraud exception).
- Underlying facts (only the communication itself is privileged).
- Information shared with third parties, which may waive confidentiality.
In international practice, privilege rules differ significantly between civil-law and common-law systems, creating friction in cross-border investigations, arbitration, and regulatory inquiries. Some jurisdictions extend analogous protections to communications with patent attorneys, tax advisors, or in-house counsel; others do not. For researchers and practitioners working across borders, identifying which jurisdiction's privilege rules apply — and whether a foreign privilege will be recognized locally — is often a threshold question in evidence gathering and disclosure.
Example
In *Akzo Nobel Chemicals Ltd v European Commission* (2010), the Court of Justice of the EU held that communications between Akzo Nobel and its in-house lawyer were not protected by legal professional privilege in EU competition investigations.
Frequently asked questions
The client holds the privilege. Only the client can waive it, though the lawyer has a professional duty to assert it on the client's behalf unless instructed otherwise.
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