At its core, a privilege is a rule that prevents certain confidential information from being disclosed in legal proceedings. This protection is crucial for fostering an environment where clients feel safe to disclose sensitive information, thereby enabling professionals to provide the best possible assistance. The rules surrounding privileges are not codified in the Federal Rules of Evidence (FRE). Instead, they are largely governed by common law, except where the Constitution, federal statute, or a rule provided by the Supreme Court of the United States provide otherwise. In cases where state law governs civil claims or defenses, it is state law that determines the privilege.
The Purpose Of Privileges
According to an accident lawyer, the rationale behind privileges is multifaceted. They serve to protect the jury from misleading information, eliminate unnecessary delays, promote judicial efficiency, protect certain social interests, and ensure the reliability of evidence. These objectives underscore the importance of privileges in maintaining the fairness and integrity of legal proceedings.
Attorney-Client Privilege, The “Absolute” Shield
The general rule surrounding attorney-client privilege reads, “A client has a privilege to refuse to disclose confidential communications made for the purpose of facilitating the rendition of professional legal services between an attorney and the client.”
A “confidential communication” exists when the communication was intended and reasonably expected to be confidential. A communication can either be verbal or non-verbal. Third parties may be present without destroying confidentiality only if they would be reasonably expected to not hear the communication or if it is reasonably necessary for the transmission of the communication (such as if there is a secretary or paralegal present).
“Between an attorney and their client,” has been interpreted to mean the attorney is any person authorized to practice law in the given jurisdiction, or any person that a client reasonably believes is authorized to practice law in the given jurisdiction. The client is any person or other entity who obtains professional legal services from an attorney or consults with an attorney for the purpose of obtaining legal services.
“Made for the purpose of facilitating the rendition of professional legal services,” provides that this rule protects all communications between the client and their attorney, regardless of if they were made by the client or the attorney.
Importantly, this privilege has exceptions, such as the crime-fraud exception. This exception stipulates that advice or assistance furthering ongoing or future crimes are not protected communications.
Work-Product Doctrine, The “Qualified” Shield
Contrasting the “absolute” nature of attorney-client privilege, the work-product doctrine offers a qualified protection for materials prepared in anticipation of litigation. This privilege extends to both communications and non-communicative information, safeguarding materials prepared by attorneys. This privilege does not extend to materials prepared by the client. If the opposing party demonstrates a substantial need for the work-product, this privilege can be overcome.
The Dual Faces Of Waiver
The power to assert or waive the attorney-client privilege or the work-product doctrine rests solely with the client. This means that the privilege lasts until the attorney dies, not the client. The client’s control in waiving this privilege underscores the significance of the privilege’s protective purpose. Waivers can be categorized as intentional or inadvertent. Intentional waivers occur if a disclosure is made in a federal proceeding or to a federal agent. This waiver may extend to further undisclosed communications in state or federal court, if the waiver was intentional, the disclosed and undisclosed communications or information concern the same subject matter, and the two communications ought to be considered together for the sake of fairness. Inadvertent waivers, on the other hand, do not constitute a waiver if reasonable steps were taken to prevent and rectify the mistaken disclosure.
Privileges play a crucial role in the judicial system. They balance the need for confidentiality with the demands of justice. Whether through the absolute protection of attorney-client communications, or the qualified shield of work-product materials, these privileges ensure that the interests of the client are protected. Thanks to Eglet Adams Eglet Ham and Henriod for their insight on Attorney-Client Privilege. If you are in need of an attorney, contact one near you for help.