The five-part test is typically the starting point in a court’s analysis of a claim for privilege. Each element appears straight-forward on its face but can be tricky to apply, especially when the client is a corporation and not a natural person. Corporate clients raise questions as to who may speak for the corporation and assert the attorney-client privilege on behalf of the entity as a whole. Some courts have ruled that the attorney-client privilege may only be asserted by the upper management of a corporation. A vast majority of courts, however, have ruled that the privilege may be asserted not only by a corporation’s officers, directors, and board members, but also by any employee who has communicated with an attorney at the request of a corporate superior for the purpose of obtaining legal advice. Upjohn Co. v. U.S., 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584, (U.S. 1981).
Whether the client is a natural person or a corporation, the attorney-client privilege belongs only to the client and not to the attorney. As a result, clients can prevent attorneys from divulging their secrets, but attorneys have no power to prevent their clients from choosing to waive the privilege and testifying in court, talking to the police, or otherwise sharing confidential attorney-client information with third parties not privy to the confidential discussions. Clients may waive attorney-client privilege expressly by their words or implicitly by their conduct, but a court will only find that the privilege has been waived if there is a clear indication that the client did not take steps to keep the communications confidential. An attorney’s or a client’s inadvertent disclosure of confidential information to a third party will not normally suffice to constitute waiver. If a client decides against waiving the privilege, the attorney may then assert the privilege on behalf of the client to shield both the client and the attorney from having to divulge confidential information shared during their relationship.
In most situations, courts can easily determine whether the person with whom a given conversation took place was in fact an attorney. However, in a few cases courts are asked to decide whether the privilege should apply to a communication with an unlicensed or disbarred attorney. In such instances, courts will frequently find that the privilege applies if the client reasonably believes that he or she was communicating with a licensed attorney. State v. Berberich, 267 Kan. 215, 978 P.2d 902 (Kan. 1999). But courts in some jurisdictions have relaxed this standard, holding that the privilege applies to communications between clients and unlicensed lay persons who represent them in administrative proceedings. Woods on Behalf of T.W. v. New Jersey Dept. of Educ., 858 F.Supp. 51 (D.N.J. 1993).
Although many courts emphasize that the attorney-client privilege should be strictly applied to communications between attorney and client, the attorney-client privilege does extend beyond the immediate attorney-client relationship to include an attorney’s partners, associates, and office staff members (e.g., secretaries, file clerks, telephone operators, messengers, law clerks) who work with the attorney in the ordinary course of their normal duties. However, the presence of a third party who is not a member of the attorney’s firm will sometimes defeat a claim for privilege, even if that third person is a member of the client’s family.
Thus, one court ruled that in the absence of any suggestion that a criminal defendant’s father was a confidential agent of the defendant or that the father’s presence was reasonably necessary to aid or protect the defendant’s interests, the presence of the defendant’s father at a pretrial conference between the defendant and his attorney invalidated the attorney-client privilege with respect to the conference. State v. Fingers, 564 S.W.2d 579 (Mo.App. 1978). In the corporate setting, the presence of a client’s sister defeated a claim for attorney-client privilege that involved a conversation between a clientcompany’s president and the company’s attorney, since the sister was neither an officer nor director of the company and did not possess an ownership interest in the company. Cherryvale Grain Co. v. First State Bank of Edna, 25 Kan.App.2d 825, 971 P.2d 1204 (Kan.App. 1999).
Many courts have described attorney-client confidences as “inviolate.” Wesp v. Everson, ― P.3d ―, 2001 WL 1218767 (Colo. 2001). However, this description is misleading. The attorney-client privilege is subject to several exceptions. Federal Rule of Evidence 501 states that “the recognition of a privilege based on a confidential relationship … should be determined on a case-by-case basis.” In examining claims for privilege against objections that an exception should be made in a particular case, courts will balance the benefits to be gained by protecting the sanctity of attorney-client confidences against the probable harms caused by denying the opposing party access to potentially valuable information.
The crime-fraud exception is one of the oldest exceptions to the attorney-client privilege. The attorney-client privilege does not extend to communications made in connection with a client seeking advice on how to commit a criminal or fraudulent act. Nor will a client’s statement of intent to commit a crime be deemed privileged, even if the client was not seeking advice about how to commit it. The attorney-client privilege is ultimately designed to serve the interests of justice by insulating attorney-client communications made in furtherance of adversarial proceedings. But the interests of justice are not served by forcing attorneys to withhold information that might help prevent criminal or fraudulent acts. Consequently, in nearly all jurisdictions attorneys can be compelled to disclose such information to a court or other investigating authorities.
A party seeking discovery of privileged communications based upon the crime-fraud exception must make a threshold showing that the legal advice was obtained in furtherance of the fraudulent activity and was closely related to it. The party seeking disclosure does not satisfy this burden merely by alleging that a crime or fraud has occurred and then asserting that disclosure of privileged communications might help prove the crime or fraud. There must be a specific showing that a particular document or communication was made in furtherance of the client’s alleged crime or fraud.
The fact that an attorney-client relationship exists between two persons is itself not typically privileged. U.S. v. Leventhal, 961 F.2d 936 (11th Cir. 1992). However, if disclosure of an attorney-client relationship could prove incriminating to the client, some courts will enforce the privilege. In re Michaelson, 511 F.2d 882 (9th Cir. 1975). Names of clients and the amounts paid in fees to their attorneys are not normally privileged. Nor will clients usually be successful in asserting the privilege against attorneys who are seeking to introduce confidential information in a lawsuit brought by a client accusing the attorney of wrongdoing. In such instances courts will not allow clients to use the attorney-client privilege as a weapon to silence the attorneys who have represented them. Courts will allow both parties to have their say in malpractice suits brought by clients against their former attorneys.