Attorney-Client Privilege
The rule shielding confidential communications between a client and lawyer made to seek or give legal advice.
Attorney-client privilege protects confidential communications between a client and their attorney, or the attorney's agents, made for the purpose of seeking or providing legal advice. It applies only to communications, not to the underlying facts - a client cannot shield a fact from discovery simply by telling it to their lawyer, but the conversation in which they told it is protected. The privilege belongs to the client, not the lawyer, which means only the client can waive it, and it survives even after the attorney-client relationship ends or the client dies, subject to narrow exceptions.
In the corporate context, the Supreme Court's decision in Upjohn Co. v. United States extended the privilege beyond the senior-executive control group to communications between corporate counsel and any employee, so long as the communication was made at the direction of a corporate superior for the purpose of obtaining legal advice and concerned matters within the employee's corporate duties. That extension is what allows in-house and outside counsel to interview line employees during an internal investigation without automatically exposing those interviews to discovery, provided the purpose and structure of the interview are handled correctly from the start.
The privilege is not absolute. It can be waived, intentionally or inadvertently through careless disclosure without a protective order in place, and it does not apply to communications made to further an ongoing or future crime or fraud, known as the crime-fraud exception. It is also frequently confused with the work product doctrine, which is a separate protection for materials prepared in anticipation of litigation regardless of whether they reflect legal advice. Keeping the two doctrines straight matters because they have different scopes, different holders, and different rules for waiver.
How it actually shows up
Every litigator manages privilege from the first client intake call, structuring communications, investigations, and document creation to preserve it, because a privilege waiver can hand the opposing party a roadmap of legal strategy and vulnerable admissions. Corporate counsel in particular design internal investigations around Upjohn warnings and controlled distribution of legal memoranda specifically to keep the protection intact.
- Who owns attorney-client privilege, the lawyer or the client?
- The client owns the privilege. That means only the client can waive it, and the attorney is generally obligated to assert it on the client's behalf unless and until the client authorizes disclosure. It also means the privilege survives the end of the representation and, with narrow exceptions, the client's death.
- Does attorney-client privilege protect underlying facts?
- No. Privilege protects the communication in which a fact was conveyed to a lawyer, not the fact itself. If a client tells their attorney about an event, the opposing party can still ask the client directly about that event in discovery; they just cannot compel disclosure of what the client said to counsel about it.
- What is the crime-fraud exception to attorney-client privilege?
- It removes privilege protection from communications made to plan or further an ongoing or future crime or fraud, as opposed to communications about past wrongdoing, which generally remain privileged. Courts require a factual showing, often through in-camera review, before applying the exception and stripping away the privilege.
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