Protection From Discovery: Everything You Need to Know
The attorney-client privilege, which originated in Roman and canon law, is the oldest of the privileges for confidential communications known to the common law.13 min read
Protection From Discovery — A Little About Work-Product, Attorney-Client And Common-Interest Privileges
The attorney-client privilege, which originated in Roman and canon law, "is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). Its purpose is "to encourage full and frank communications between attorneys and their clients," and it exists to protect" not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Id. at 389-91.
The Court also said, "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." Id. at 389, and in Hunt v. Blackburn, 128 U.S. 464, 470 (1888) it explained that the privilege is "founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure."
BASIC RULES REGARDING ATTORNEY-CLIENT PRIVILEGE
What Is Protected?
FIRST, the attorney-client privilege protects confidential communications between an attorney and his or her client "made for the purpose of furnishing or obtaining professional legal advice and assistance." In re LTV Securities Litigation, 89 F.R.D. 595, 600 (N.D.Tex. 1981).
The privilege applies in both directions: to communications from the client to the attorney, and to communications from the attorney to the client. Schwimmer v. U.S., 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833 (1956); Green v. IRS, 556 F.Supp. 79, 85 (N.D.Ind. 1982), afford without op., 734 F.2d 18 (7th Cir. 1984).
It applies with equal force to conversations and correspondence among a client's attorneys, whether or not the client is present during the conversation or receives a copy of the correspondence. See, e.g.:
- Natta v. Zletz, 418 F.2d 633, 637 (7th Cir. 1969) (correspondence between house and outside counsel fall within the privilege);
- Chicano Lawyers Committee v. City of Chicago, No. 76 C 1982, slip. op. (N.D.Ill. Apr. 1981) (privilege extends to meeting between "attorneys discussing the giving of legal advice or assistance in anticipation of pending litigation");
- Green, 556 F.Supp. at 85 (privilege applies equally to inter-attorney communications);
- Foseco Int'l Ltd. v. Fireline Inc., 546 F.Supp. 22, 25 (N.D.Ohio 1982) (communications between patent counsel and local counsel were confidential and, therefore, subject to the privilege);
- In re D.H. Overmyer Telecasting Co., 470 F.Supp. 1250, 1254- 55 (S.D.N.Y. 1979) (conversations between in-house and outside counsel protected by privilege);
- Burlington Inc. v. Exxon Corp., 65 F.R.D. 26, 36 (D.Md. 1974) (confidential communications between in-house and outside counsel, as well as between two outside lawyers representing the same client, fall within scope of privilege).
Confidential Communications, Not Facts, Are Protected
SECOND, what is protected by the privilege is the communications themselves within the confidential setting. "The protection of the privilege extends only to communications and not to facts." Upjohn at 395 (quoting Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D.Pa. 1962)), and investigators are free to question individuals who communicate with counsel about unprivileged facts known to them. But arguments that the information may more conveniently be obtained from the privileged communication are unavailing because "such considerations of convenience do not overcome the policies served by the attorney-client privilege." Id. at 396.