10.01. Introduction

Assume that you have just finished your first day on the job at a law firm. You worked on a very interesting case – one in which the client walked into the office and says “I shot the sheriff, but I did not shoot the deputy.” A good friend meets you for dinner that evening and asks you if you met with a client. You say “yes,” and the friend says, “Well, then tell me what he said – I can keep a secret.” You think for a moment, ask yourself what would they do on Law and Order, and then say, “I can’t – what he told me is protected by the attorney-client privilege!” Were you correct that the attorney client privilege prevented you from making the disclosure? The answer (surprising perhaps) is no. It is true that you owe a duty of confidentiality to your clients, and so your gut instinct was correct, but your rationale not.

What you will find in the next couple of topics is that there are three primary doctrines governing the obligation of confidentiality, and while they overlap enough to make it confusing, they all have unique purposes and roles in protecting client confidences. We will discuss the first of the rules in this topic: attorney-client privilege. As the example in the last paragraph demonstrates, there is a tendency to use the attorney-client privilege as sort of a catch-all obligation, so it may be helpful to set out the individual components of the rule and then analyze each in detail. Before getting started, however, I should make a caveat. The law of attorney-client privilege is state specific, and therefore when looking to identify the parameters of the privilege in a particular case, you should consult that jurisdiction’s laws. For our purposes, I am going to look to the Restatement (Third) of Law Governing Lawyers for our elements and discussion.

The elements of the privilege are:

• a communication
• made between privileged persons
• in confidence
• for the purpose of obtaining or providing legal assistance[1]

If a communication meets the elements to satisfy the privilege, then a court cannot compel a client or lawyer to testify as to the contents of the communication. So, do you see why it is not correct to refuse to reveal the client confidences in the example above based on the attorney client privilege? It is because your friend is not a court. In short, the attorney client privilege is a rule of evidence that operates to prohibit compelled testimony from a client or lawyer. The privilege is ordinarily set out in a statute or as a evidence rule (or both). Don’t worry – you will find out soon enough why you can’t disclose to your friend what the client said.

[1] Restatement (Third) of the Law Governing Lawyers § 68.