6.1.2Every element of the attorney-client privilege

Courts require all four elements because the privilege suppresses relevant evidence; narrow requirements protect the relationship without sheltering information outside it. All four must be present simultaneously: remove one and privilege doesn't attach. Lower-level corporate employees must also satisfy three additional conditions.

Privilege buys candor by hiding evidence a court would otherwise see, and evidence a court cannot see costs whoever needed it. Drawing the requirements narrowly is how that cost stays proportionate: the shelter covers the relationship it was built for, and stops at the edge of it.

Privilege attaches where the elements are satisfied together:

1. an attorney authorized to practice, or reasonably believed by the client to be, acting as an attorney;
2. a client, including a prospective one;
3. a communication made for the purpose of obtaining legal assistance; and
4. a reasonable belief that it would stay private.

A lower-level corporate employee must also meet the further conditions listed below. The client holds the privilege and the lawyer asserts it. Objects are not communications, though the client's statements about them are protected.

All four elements are required for privilege to attach:

• Attorney: Authorized to practice law, or a person the client reasonably believes is authorized; must be acting as an attorney, not as a friend, business partner, or accountant.

• Client: Any person or entity seeking legal services, including prospective clients who consult the attorney even if no representation forms — two points below, and the second is the one with conditions attached.
  • High-ranking corporate officials (CEO, CFO, equivalents): always covered.
  • Lower-level corporate employees — all three conditions required:
    • (a) communicated at the direction of a superior;
    • (b) knew the communication was made so the corporation could receive legal advice; AND
    • (c) the subject matter falls within the employee's duties.

• Communication: Information transmitted between attorney and client (or their agents) for the purpose of obtaining legal assistance — two points, and the second one cuts both ways:
  • Agents who preserve privilege: lawyer's paralegal, secretary, retained expert; client's interpreter or guardian.
  • Eavesdroppers don't destroy privilege, though a court may prevent an eavesdropper from testifying. An unnecessary third party DOES.

• Confidential: The communicating person reasonably believed the communication would remain private. Discussing the case where others can easily overhear eliminates this expectation.

Duration: Perpetual; survives the end of representation and the client's death.

Who holds privilege: The client. The lawyer asserts it on the client's behalf when the client is absent.

Inadvertent disclosure — no waiver when both conditions hold: (1) The lawyer took reasonable steps to prevent disclosure. (2) The lawyer promptly took reasonable corrective steps after the slip.

Intentional waiver — three grounds: (1) Failure to claim privilege, by the client or by the lawyer asserting it on the client's behalf, when an opportunity arises. (2) Intentional revelation of a significant part of a privileged communication; waives only that communication. (3) Putting the legal advice at issue in litigation (e.g., a malpractice suit on that advice); waiver reaches only matters put at issue.

Objects are not communications: Physical items the client hands to the lawyer are not privileged. The client's statements about those items are protected.

In a corporate scenario, the exam drops one of the three lower-level-employee conditions and counts on you to miss it. The missing prong is most often direction from a superior; its absence defeats privilege even when the other two conditions are clearly met.

The exam will place a co-worker in the room and ask whether privilege is automatically destroyed. Not automatically. A necessary agent (paralegal, interpreter, retained expert) preserves privilege; an uninvited outsider with a separate purpose destroys it.