How will a consumer feel secure from the potential risk of getting sensitive info fall into the incorrect hands? In an especially complicated and competitive business climate saturated by consultants, technical advisors and out of doors specialists, the subtle business owner may pause to contemplate one in all the basic benefits of retaining legal counsel. By its terribly nature, the attorney-client relationship affords a definite, invaluable right to own communications shielded from compelled disclosure to any third party, together with business associates and competitors, government agencies and even criminal justice authorities.

ATTORNEY-CLIENT PRIVILEGE: DEFINITION

The attorney-client privilege is that the oldest privilege recognized by Anglo-American jurisprudence. In fact, the principles of the testimonial privilege could also be traced all the method back to the Roman Republic, and its use was firmly established in English law as early because the reign of Elizabeth I within the sixteenth century. Grounded within the concept of honor, the privilege worked to bar any testimony by the attorney against the consumer.1

As the privilege has evolved, countless policy justifications have played a job in its development. At its most simple, the privilege ensures “that one who seeks recommendation or aid from a lawyer ought to be fully freed from any concern that his secrets are going to be uncovered.”2 Thus, the underlying principle of the privilege is to produce for “sound legal recommendation [and] advocacy.”3 With the protection of the privilege, the consumer could speak frankly and overtly to legal counsel, disclosing all relevant info to the attorney and making a “zone of privacy.”4 In alternative words, shielded by the privilege, the consumer could also be a lot of willing to speak to counsel things that may well be suppressed. In theory, such candor and honesty can assist the attorney in providing a lot of correct, well-reasoned skilled recommendation, and therefore the consumer will be secure within the information that his statements to his lawyer won't be taken as an adverse admission or used against his interest.5 Indeed, armed with full information, counselors at law are higher equipped to “satisfy all of their skilled responsibilities, uphold their duties of fine religion and loyalty to the consumer, and [contribute] to the economical administration of justice.”6

For all of its policy issues and justifications, the attorney-client privilege incorporates a terribly real sensible consequence: the attorney could neither be compelled to nor could he or she voluntarily disclose matters conveyed in confidence to him or her by the consumer for the aim of seeking legal counsel. Likewise, the consumer might not be compelled to testify concerning matters communicated to the lawyer for the aim of seeking legal counsel.7 So, what's the privilege and when will it apply?

Although there's no single authority on the attorney-client privilege, it's been outlined as follows: “(1) Where legal recommendation of any kind is sought (2) from an expert legal adviser in his [or her] capability as such, (3) the communications with reference to that purpose, (4) created in confidence (5) by the consumer, (6) are at his [or her] instance permanently protected (7) from disclosure by [the client] or by the legal adviser, (8) except the protection be waived.”8

One federal decide opined that “the privilege applies providing (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was created (a) may be a member of the bar of a court, or his subordinate and (b) in reference to this communication is acting as a lawyer; (3) the communication relates to a truth of that the attorney was informed (a) by his consumer (b) while not the presence of strangers (c) for the aim of securing primarily either (i) an opinion on law or (ii) legal services or (iii) help in some legal continuing, and not (d) for the aim of committing a criminal offense or tort; and (4) the privilege has been (a) claimed and (b) not waived by the consumer.”9

No matter how the attorney-client privilege is articulated, there are four basic components necessary to determine its existence: (1) a communication; (2) created between privileged persons; (3) in confidence; (4) for the aim of seeking, getting or providing legal help to the consumer.10