The Ethical Dilemma of Attorney-Client Privilege: Outline

I. Attorney Client Privilege

a. The right of a lawyer to refuse to divulge confidential information from his client

1. Client has privilege, not lawyer

2. The principle is not clear cut and has some ethical and moral gray areas

b. Exceptions Apply

2. Cannot be applied when the client is attempting to involve the lawyer before the crime occurs

c. Confidentiality and Attorney Client Privilege are not one and the same

1. Confidentiality requires the lawyer not to reveal representation information

2. Attorney-client privilege protects the lawyer from being obligated to testify or produce incriminating evidence against their client

II. Work Product Doctrine

Civil procedure that protects materials prepared in anticipation of litigation from discovery by opposing counsel

Can be applied to non-attorney produced documents also

1. The party claiming the work product privilege must prove that the materials are documents and tangible things, prepared in anticipation of litigation or trial and by or for the party or by or for the party’s representative.

III. Waivers

Can establish privilege on a limited bases

Is not guaranteed to be honored

IV. Law Modifications and Expansions

Court of appeals in re: Martin Marietta corp. expanded waivers excluding attorney-client privilege applies to settlement conference

Opens lawyer litigation files to hostile parties

Federal judge in New York ruled that a standard audit letter disclosure of potential litigation also waives the assumed attorney-client privilege. 

Also applies to work protection related to underlying data from outside investigations

Creates great concern over the stability and protection of attorney-client privilege

V. Impact of Technology and Email Communication on Privilege

a. There are significant legal consequences related to communicating via email and online

b. Lawyers and Clients need to know how to handle the responsibilities of communication

1. Overheard conversations by third parties are not covered

2. Email sent to the wrong recipient are not covered

3. Stolen documents are not covered

4. Hacked information is not covered

VI. Disclosure of Clients Identity

Lawyers are not always required to identify their client

Does not apply if the disclosure would incriminate the client of past crimes

Does not apply if it subjects them to civil liability

Does not apply if it exposes private communications