Attorney-Client Privilege

What the privilege protects

Attorney-client privilege is an evidence doctrine that can protect a confidential communication between a client and lawyer made for the purpose of seeking or providing legal advice. The privilege can prevent compelled disclosure in litigation or another proceeding. Its exact elements, exceptions, and application depend on governing evidence law, so a jurisdiction’s statute and decisions control actual disputes. The MPRE tests the familiar common-law framework alongside the Model Rules.

Privilege is narrower than professional confidentiality. Model Rule 1.6 covers information relating to a representation from nearly any source. Privilege usually protects communications, not every fact a lawyer learns. A lawyer may owe an ethical duty not to reveal the client’s identity or a public fact even when no privileged communication exists.

Ask four questions: Was there a communication? Was it between a client and a lawyer or an agent helping the communication? Was it confidential when made? Was its purpose to obtain or provide legal advice? If one element is missing, the communication may not be privileged, although other protections can apply.

Who is the client and who is the lawyer

The privilege applies to communications between a client and a lawyer acting as a lawyer. A conversation with a friend who happens to hold a law license is not privileged if the friend is not acting in a legal role. A client’s business discussion with a lawyer who is acting as a negotiator or investment adviser may fall outside the privilege to the extent it is not for legal advice.

Communications through an agent can remain protected when the agent is reasonably needed to facilitate legal advice. An interpreter helping a client communicate with counsel is a common example. A translator is not automatically a waiver-producing third party when the translator is necessary to understand the conversation. But copying an unrelated friend on an email can destroy confidentiality, depending on the circumstances.

Corporate clients require careful identification. A company acts through people, and employees may communicate with company counsel to obtain legal advice for the organization. Under the common-law approach tested in many MPRE questions, a communication is not limited to top executives; an employee may be the client’s representative when speaking at the direction of company counsel about matters within the employee’s corporate duties. The organization, rather than the employee personally, holds the privilege. Counsel should clarify whom the lawyer represents.

Communication, purpose, and confidentiality

The privilege protects communications, including spoken statements, letters, emails, and other exchanges. The underlying facts do not become privileged merely because the client tells them to a lawyer. A witness can still be asked what she saw, even if she later described it to counsel. The lawyer’s confidential legal analysis may be protected, but the historical event itself is not transformed into a secret.

The dominant purpose must be legal advice. A request for legal advice can remain privileged even if it also has a business consequence. But sending routine business instructions to a lawyer does not automatically cloak them. If a lawyer serves as both legal and business adviser, separate the legal advice from ordinary commercial advice where possible.

Confidentiality means the client intended the communication to remain private and did not disclose it to unnecessary outsiders. An accidental or necessary disclosure is analyzed under governing law; the result is not always the same as a deliberate disclosure. A communication to counsel in the presence of a stranger is generally not confidential unless that person’s participation is needed for the legal consultation.

The privilege belongs to the client. The client may assert it and may waive it. The lawyer should assert the privilege on the client’s behalf when appropriate, but the lawyer does not own it. A client’s voluntary disclosure of a privileged communication to an outsider can waive protection. Waiver may extend beyond the exact sentence disclosed if fairness requires, but scope is a legal question.

Confidentiality versus privilege versus work product

These protections overlap but do different jobs:

• Ethical confidentiality: Rule 1.6 governs a lawyer’s conduct and generally covers information relating to the representation, whatever its source. It applies in and outside court and continues after the matter ends.
• Attorney-client privilege: Evidence law protects qualifying confidential communications for legal advice from compelled disclosure. It does not automatically protect underlying facts or every document in the lawyer’s file.
• Work-product protection: Procedural law may protect materials prepared in anticipation of litigation, especially a lawyer’s mental impressions and legal theories. It can cover material created by a nonlawyer and is distinct from privilege.

Suppose a client gives counsel a public contract and asks whether it creates liability. The contract itself is not privileged merely because counsel receives it. The client’s confidential question and the lawyer’s legal response may be privileged. Counsel’s duty of confidentiality may also prevent casual disclosure of the contract’s connection to the representation. If counsel then prepares a litigation strategy memo in anticipation of a lawsuit, work-product doctrine may protect the memo even if it is not itself a client-lawyer communication.

Waiver, third parties, and common interest

Voluntary disclosure to someone outside the privileged relationship can waive privilege. A client who forwards counsel’s legal advice to a business partner or posts it online risks waiver. Sharing with an agent necessary to provide legal advice generally does not have the same effect. The identity and role of a third party matter.

The common-interest doctrine may preserve privilege when separate clients share a privileged communication to advance a common legal interest. A shared commercial goal alone is not enough. The parties generally need a common legal strategy or interest, and the underlying communication must already qualify as privileged. The doctrine does not create a privilege for a business discussion that was never protected.

For example, two companies facing related litigation jointly consult counsel about a coordinated legal defense. Their confidential exchange may qualify for common-interest protection if governing law recognizes the doctrine and the legal interest is genuinely shared. If the companies merely share a commercial interest in keeping prices high and exchange ordinary business plans, the doctrine does not shield the conversation.

Crime-fraud exception

Privilege does not protect a communication made to obtain legal help in committing or furthering a crime or fraud. The exception focuses on the client’s purpose when seeking the advice. A client cannot make a planned fraud privileged simply by asking a lawyer how to carry it out.

By contrast, a client may seek legal advice about past wrongdoing to understand potential liability, respond to an investigation, or defend a case. A confession to completed conduct is not automatically outside the privilege. The lawyer’s role is to give lawful advice, not to help continue the crime or fraud.

Example: a client asks counsel how to structure a false invoice scheme so auditors will not detect it. The request seeks help furthering fraud, so the crime-fraud exception may defeat privilege if its legal standard is met. If the client instead asks what penalties may follow from a completed false invoice submitted before any attorney consultation, that communication seeks advice about past conduct and may remain privileged. The exception does not remove Rule 1.6 confidentiality in every case; ethics confidentiality and privilege must still be analyzed separately.

Other limits and exceptions

Privilege law commonly recognizes exceptions for communications relevant to disputes between lawyer and client, disputes among joint clients concerning their common representation, and some testamentary matters where the client’s intent is at issue. The exact rules vary. The MPRE may test the underlying principles rather than a jurisdiction’s detailed evidentiary procedure.

When two clients jointly consult one lawyer, their communications to the lawyer are ordinarily privileged against outsiders while the joint representation continues. But if the clients later sue each other over the matter, one generally cannot invoke the privilege to prevent the other from using communications made during the joint representation concerning that matter. Each was part of the client group for that common legal work. A lawyer should explain the joint representation and its consequences before receiving sensitive information.

Privilege usually survives the end of the attorney-client relationship and the client’s death, subject to recognized exceptions. Death alone does not make old legal communications public. A dispute among people claiming through the client may permit communications to be considered when relevant to the client’s testamentary intent, depending on governing law.

Original applications

Underlying facts versus the lawyer conversation

A client tells counsel that she signed a lease on March 1 and asks whether a clause permits early termination. Opposing counsel may ask the client when she signed the lease because that is an underlying fact. The confidential consultation and legal advice about the clause may be privileged. The date does not become privileged solely because the client disclosed it to a lawyer.

A public document in counsel’s file

A company gives its lawyer a public environmental permit and asks for an opinion about compliance. The permit remains publicly available and is not privileged merely because counsel possesses it. The client’s confidential request for legal advice and counsel’s response may be protected. The lawyer’s separate ethical confidentiality duty may limit whether counsel can disclose that the company sought advice about the permit.

Lawyer copied on a business email

A sales manager emails a vendor about delivery terms and copies the company lawyer, who is not asked for legal advice. The email is an ordinary business communication, not privileged simply because counsel received a copy. If the manager separately asks counsel for legal advice about the contract and sends a confidential legal question, that communication may qualify.

Interpreter in the consultation

A client who does not speak the lawyer’s language uses a qualified interpreter so counsel can understand the facts and advise. Because the interpreter is necessary to facilitate the legal communication, the interpreter’s presence does not ordinarily destroy confidentiality. An unrelated friend who joins merely out of interest presents a different problem.

Employee communicates with company counsel

Company counsel interviews an engineer at management’s direction to investigate a product incident and advise the organization. The engineer discusses facts learned within the employee’s job. The communication may be privileged for the company if it was made confidentially to obtain legal advice. The engineer is not automatically the lawyer’s personal client. Counsel should make the organizational representation clear.

Advice about completed and future fraud

A client asks a lawyer to explain exposure from a tax filing the client submitted last year. The request can be privileged because the client seeks advice about past conduct. If the client asks the lawyer to prepare a false affidavit to conceal that filing in current litigation, the communication seeks assistance in continuing a fraud and may fall within the crime-fraud exception. The same facts may raise separate duties under Rules 1.2, 1.6, and 3.3.

Sharing advice with an investor

A founder forwards counsel’s confidential advice about a pending acquisition to a prospective investor. The investor is not part of the lawyer-client relationship and is not necessarily needed to obtain legal advice. The disclosure may waive privilege. The founder’s lawyer should not assume a confidentiality label or nondisclosure agreement restores privilege after disclosure.

How to solve privilege questions

Use a disciplined sequence:

• Name the client and lawyer, including whether a company is the client.
• Identify the specific communication, not merely the underlying event or document.
• Ask whether the lawyer acted in a legal capacity and whether the purpose was legal advice.
• Determine whether the client intended confidentiality and whether outsiders were necessary participants.
• Check for waiver, common interest, joint-client issues, or an exception such as crime-fraud.
• Analyze Rule 1.6 separately. A communication can lack privilege yet remain ethically confidential.
• Consider work product separately if the question concerns litigation preparation rather than legal advice communications.

The most common MPRE error is to treat “confidential” as a synonym for “privileged.” The better question is which legal protection the problem asks about and what it protects. A lawyer may be ethically barred from disclosing a fact that a court could compel the client to answer. A privileged communication may also be subject to a crime-fraud exception even while the lawyer retains other ethical duties.