‼️
Prof Responsibility • Communication
PR#057
Legal Definition
There are three exceptions to the attorney-client privilege: (1) the crime-fraud exception, where a client seeks to employ an attorney to assist in committing a crime or fraud; (2) regarding issues relevant to a breach of the attorney-client relationship, such as a malpractice suit or a suit for fees; and (3) civil litigation between two former joint clients of the attorney. Additionally, waiver of the privilege can occur if the client voluntarily discloses privileged information to a third party or consents to the attorney revealing such information.
Plain English Explanation
The attorney-client privilege is a critical aspect of legal practice, ensuring that clients can communicate openly with their lawyers without fear that their discussions will be disclosed. However, this privilege is not absolute and has specific exceptions where it does not apply.
The first exception is the crime-fraud exception. This applies when a client seeks legal advice or assistance in furthering a crime or fraud. The rationale is that the privilege cannot be used to shield ongoing or future illegal activities. For instance, if a client asks a lawyer how to launder money, those communications are not protected.
The second exception involves situations where there is a breach of the attorney-client relationship. This typically arises in cases like malpractice suits or disputes over legal fees between the lawyer and the client. In these instances, the communications relevant to the dispute between the lawyer and the client are not protected by privilege because the lawyer must be able to defend themselves or assert their rights.
The third exception occurs in civil litigation between two former joint clients. When a lawyer has represented two clients jointly, and those clients later enter into a legal dispute with one another, communications made during the joint representation may not be privileged in the litigation between the former clients. This is based on the idea that both clients had equal ownership of the communications during the joint representation.
Waiver of privilege is also a key concept. The privilege can be lost if the client voluntarily discloses the privileged information to a third party or consents to the attorney disclosing it. This waiver is significant because it can expose sensitive communications that would otherwise have been protected.
The first exception is the crime-fraud exception. This applies when a client seeks legal advice or assistance in furthering a crime or fraud. The rationale is that the privilege cannot be used to shield ongoing or future illegal activities. For instance, if a client asks a lawyer how to launder money, those communications are not protected.
The second exception involves situations where there is a breach of the attorney-client relationship. This typically arises in cases like malpractice suits or disputes over legal fees between the lawyer and the client. In these instances, the communications relevant to the dispute between the lawyer and the client are not protected by privilege because the lawyer must be able to defend themselves or assert their rights.
The third exception occurs in civil litigation between two former joint clients. When a lawyer has represented two clients jointly, and those clients later enter into a legal dispute with one another, communications made during the joint representation may not be privileged in the litigation between the former clients. This is based on the idea that both clients had equal ownership of the communications during the joint representation.
Waiver of privilege is also a key concept. The privilege can be lost if the client voluntarily discloses the privileged information to a third party or consents to the attorney disclosing it. This waiver is significant because it can expose sensitive communications that would otherwise have been protected.
Hypothetical
Hypo 1: Bob, a criminal defense attorney, is representing Sam, who is accused of embezzlement. During a meeting, Sam confides in Bob that he has hidden $500,000 in stolen funds and asks Bob to help him transfer the money to an offshore account. Bob refuses and explains that he cannot assist in any illegal activities. Result: The crime-fraud exception applies here. If prosecutors later discover Sam's request and subpoena Bob to testify about it, Bob would be compelled to disclose the conversation. The attorney-client privilege does not protect communications made in furtherance of a crime or fraud.
Hypo 2: Sam hires Bob to represent him in a complex business negotiation. Months later, Sam sues Bob for malpractice, claiming Bob's negligence caused him to lose millions in the deal. During the malpractice trial, Bob wants to introduce evidence of their communications to show he acted competently. Result: The exception for issues related to a breach of the attorney-client relationship applies. Bob can introduce relevant attorney-client communications to defend himself against Sam's malpractice claim. The privilege cannot be used as both a sword and a shield in disputes between attorneys and clients.
Hypo 3: Bob represents both Sam and his business partner, George, in forming their startup company. Years later, Sam and George have a falling out and sue each other over ownership of the company's intellectual property. Both want Bob to testify about conversations they had during the company's formation. Result: The exception for civil litigation between two former joint clients applies. Neither Sam nor George can claim attorney-client privilege against the other for communications made to Bob during their joint representation. This allows for a fair resolution of their dispute based on all relevant information.
Hypo 4: Sam hires Bob to represent him in a divorce case. During a heated argument with his soon-to-be ex-wife Amy, Sam blurts out details of his strategy sessions with Bob. Amy's lawyer wants to question Bob about these conversations in court. Result: Sam has likely waived the attorney-client privilege for the specific information he disclosed to Amy. By voluntarily revealing privileged communications to a third party, Sam destroyed the confidentiality that the privilege is meant to protect. Bob may be required to testify about the disclosed information, but the waiver is limited to what Sam actually revealed.
Hypo 2: Sam hires Bob to represent him in a complex business negotiation. Months later, Sam sues Bob for malpractice, claiming Bob's negligence caused him to lose millions in the deal. During the malpractice trial, Bob wants to introduce evidence of their communications to show he acted competently. Result: The exception for issues related to a breach of the attorney-client relationship applies. Bob can introduce relevant attorney-client communications to defend himself against Sam's malpractice claim. The privilege cannot be used as both a sword and a shield in disputes between attorneys and clients.
Hypo 3: Bob represents both Sam and his business partner, George, in forming their startup company. Years later, Sam and George have a falling out and sue each other over ownership of the company's intellectual property. Both want Bob to testify about conversations they had during the company's formation. Result: The exception for civil litigation between two former joint clients applies. Neither Sam nor George can claim attorney-client privilege against the other for communications made to Bob during their joint representation. This allows for a fair resolution of their dispute based on all relevant information.
Hypo 4: Sam hires Bob to represent him in a divorce case. During a heated argument with his soon-to-be ex-wife Amy, Sam blurts out details of his strategy sessions with Bob. Amy's lawyer wants to question Bob about these conversations in court. Result: Sam has likely waived the attorney-client privilege for the specific information he disclosed to Amy. By voluntarily revealing privileged communications to a third party, Sam destroyed the confidentiality that the privilege is meant to protect. Bob may be required to testify about the disclosed information, but the waiver is limited to what Sam actually revealed.
Visual Aids
