Attorney-Client Conflicts under Professional Responsibility
The Attorney-Client Privilege under Professional Responsibility
1. Introduction
The attorney-client privilege is a fundamental principle in the legal profession and professional responsibility that protects the confidentiality of communications between a lawyer and their client. It encourages open and honest communication, enabling effective legal representation.
2. Definition and Purpose
The attorney-client privilege is a legal rule that prevents attorneys from being compelled to disclose confidential communications made by a client for the purpose of obtaining legal advice.
Purpose:
To promote full and frank communication between clients and lawyers.
To protect the client's right to privacy.
To ensure effective legal counsel.
3. Elements of Attorney-Client Privilege
For the privilege to apply, the communication must:
a) Be between a client and an attorney
Includes communications with agents of the attorney (paralegals, legal assistants) when related to legal advice.
b) Be intended to be confidential
The communication must be made in confidence, not intended for disclosure to third parties.
c) Relate to seeking or providing legal advice
The communication must be for the purpose of obtaining or giving legal advice or assistance.
d) Not be waived
The privilege can be waived if the client discloses the communication to third parties or fails to maintain confidentiality.
4. Scope of the Privilege
Covers oral and written communications.
Does not protect underlying facts or evidence, only the communication.
Applies regardless of whether the client ultimately acts on the advice.
Survives the end of the attorney-client relationship and even the client's death.
5. Exceptions to Attorney-Client Privilege
Despite its strength, the privilege has recognized exceptions, including:
Crime-Fraud Exception: Communications made to further a crime or fraud are not protected.
Waiver: If the client voluntarily discloses privileged information.
Disputes Between Attorney and Client: Privilege may be waived in legal disputes between them.
6. Case Law Illustrations
⚖️ Upjohn Co. v. United States (1981)
The U.S. Supreme Court clarified that attorney-client privilege applies broadly to communications made to company attorneys by employees seeking legal advice, not just communications with top management.
Key point: The privilege protects confidential communications made for legal advice within an organization.
⚖️ Swidler & Berlin v. United States (1998)
The Supreme Court held that the privilege survives the death of the client.
In this case, the government sought attorney-client communications after the client’s death.
Outcome: The privilege remained intact.
⚖️ Clark v. United States (1933)
The Court emphasized the privilege protects not only the client’s statements but also the attorney’s legal advice.
The purpose is to enable clients to speak freely.
7. Distinction from Work Product Doctrine
Attorney-client privilege protects communications.
Work product doctrine protects materials prepared by the attorney in anticipation of litigation.
Both aim to protect the client's interests but differ in scope and application.
8. Professional Responsibility Implications
Lawyers must maintain confidentiality and uphold the privilege.
Breach of privilege can result in professional discipline.
Attorneys must advise clients about the importance of confidentiality to avoid unintentional waiver.
When representing organizations, attorneys must clarify who is the client and the limits of confidentiality.
9. Summary
The attorney-client privilege is a critical legal and ethical safeguard in professional responsibility. It protects confidential communications made for legal advice, fostering trust between lawyer and client. Leading cases like Upjohn Co. v. United States and Swidler & Berlin v. United States have defined its scope and limits. While robust, the privilege is not absolute and may be lost through waiver or exceptions such as the crime-fraud rule.
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