Attorney-Client Privilege????

In law of evidence, client's privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client though it belongs to the client, not the attorney, and hence the client may waive it. In federal courts, state law is applied with respect to such privilege.

The attorney-client privilege encourages clients to disclose to their attorneys all pertinent information in legal matters by protecting such disclosures from discovery at trial. The privileged information, held strictly between the attorney and the client, may remain private as long as a court does not force disclosure. The privilege does not apply to communications between an attorney and a client made to further a fraud or crime. The responsibility for designating which information should remain confidential rests with the client. In its most common use, however, the attorney claims the privilege on behalf of the client in refusing to disclose to the court or any other party requested information about the client's case.

As a basic construction in the judicial system, the privilege is an ancient device. It can be found even in Roman law — for example, Marcus Tullius Cicero, while prosecuting the governor of Sicily, could not call the governor's advocate as a witness, because if he were to have done so, the governor would have lost confidence in his own defender. Over the years, the close tie between attorney and client developed further with reforms in English common law.

Because attorney-client privilege often balances competing interests, it defies a rigid definition. However, one often-cited characterization was articulated in United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950). The court articulated five requirements: first, the person asserting the privilege must be a client, or must have sought to become a client at the time of disclosure; second, the person connected to the communication must be acting as a lawyer; third, the communication must be between the lawyer and the client exclusively — no non-clients may be included in the communication; fourth, the communication must be for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime; fifth, the privilege may be claimed or waived by the client only (usually, as mentioned, through counsel).

Sometimes, even when all five of the United Shoe requirements have been met, courts will still compel disclosure of the information sought. The courts base exceptions to the privilege on rule 501 of the Federal Rules of Evidence, which states that "the recognition of a privilege based on a confidential relationship … should be determined on a case-by-case basis." In examining the privilege on a case-by-case basis, courts weigh the benefits to be gained by upholding the privilege (preserving the confidence between attorney and client) against the harms that may be caused if they deny it (the loss of information valuable to the opposing party).

The courts have declared that the fact of an attorney-client relationship itself need not always remain privileged information (National Union Fire Insurance Co. of Pittsburgh v. Aetna Casualty & Surety Co., 384 F.2d 316 [5th Cir. 1967]); the privilege may be upheld, however, if the very existence of an attorney-client relationship could prove incriminating to the client (In re Michaelson, 511 F.2d 882 [9th Cir. 1975], cert. denied, 421 U.S. 978, 95 S. Ct. 1979, 44 L. Ed. 2d 469 [1975]). Also, the attorney-client privilege does not always protect the client's name or the amount paid to an attorney (Wirtz v. Fowler, 372 F.2d 315 [5th Cir. 1966]). Further, the attorney's perception of the client's mental competency will not always be protected (United States v. Kendrick, 331 F.2d 110 [4th Cir. 1964] [holding that attorney's testimony that client was responsive, logical in conversation and reasoning, and understood the proceedings did not address confidential matters]).

In general, exceptions to the attorney-client privilege can prove problematic to defense attorneys, who try to keep a client's potentially incriminating disclosures confidential. One exception, however, is intended to protect attorneys: Meyerhofer v. Empire Fire & Marine Insurance Co., 497 F.2d 1190 (2d Cir. 1974), cert. denied, 419 U.S. 998, 95 S. Ct. 314, 42 L. Ed. 2d 272 (1974), held that an attorney may circumvent the privilege if revealing information would relieve her or him of accusations of wrongdoing.

A client is not always a person; a corporation can be a client and may have a right to the attorney-client privilege. The Supreme Court's decision in Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), ensured greater protection for confidential information between a corporation and its lawyers. In the mid-1970s, Upjohn Company faced accusations of making questionable payments to officials of foreign governments in order to secure business from those governments. In response to those accusations, Upjohn authorized its corporate attorneys to conduct investigations of foreign payments. When the Internal Revenue Service (IRS) issued a summons for the investigative documents that Upjohn had left to its lawyers, Upjohn refused to comply with the request. Upjohn argued that the documents were privileged. The Supreme Court ruled in favor of Upjohn, and this decision became the standard for determining the nature of services — either legal or business — provided by the corporate attorney.

By the early 1990s, the attorney-client privilege was narrowed by federal guidelines intended to combat money laundering. The federal government, in conjunction with President George Bush's crackdown on drug trafficking (called the war on drugs), pressed an IRS policy that would hinder drug dealers and other criminals from disguising profits. The law required attorneys to disclose to the government any cash payment in excess of $10,000, and the name of the client making the payment (26 U.S.C.A. § 6050 I).

In United States v. Leventhal, 961 F.2d 936 (11th Cir. 1992), Robert Leventhal, an attorney in Florida, refused to disclose to the IRS the names of clients who had paid him over $10,000 in cash. Leventhal's clients wished to remain anonymous, and Leventhal argued that the attorney-client privilege gave them that right. Leventhal cited the Florida Rules of Professional Conduct, which require disclosure of confidential client information only in rare circumstances. The federal government sued Leventhal. The court ruled that disclosing the clients' identities revealed only the existence of an attorney-client relationship, a simple factual matter not within the scope of the privilege. Therefore, Leventhal had to reveal the sources of the payments.

The Sixth Circuit Court of Appeals followed Leventhal in United States v. Ritchie, 15 F.3d 592 (1994), cert. denied, ___ U.S. ___ , 115 S. Ct. 188, 130 L. Ed. 2d 121 (1994). Attorney Robert Ritchie had challenged the same IRS policy, but the court noted that Congress gave the IRS broad powers to ensure compliance with the tax code. Appeals court judge Alice M. Batchelder held that there was no "constitutionally protected liberty interest in spending large amounts of cash without having to account for it."

Attorneys have decried the federal government's position in such cases. But the attorney-client privilege remains useful as a defensive measure in more general circumstances. The privilege remains an exception to the general rule that individuals must testify to all facts within their knowledge. Rooted in ancient principles, it fosters trust within this important relationship and helps attorneys fully develop their clients' cases by encouraging complete disclosure of relevant information.