6.2.1Privilege's blind spots and the exceptions that void it

A shield that covered whatever came near a lawyer would let a client park documents behind counsel, buy silence about who is paying the bill, or shop for help with a crime not yet committed. These limits mark where privilege stops serving the relationship it was built for and starts serving something else.

Client identity and fee arrangements are generally outside privilege, unless revealing identity would itself reveal a privileged communication. Preexisting documents and physical evidence do not become privileged by passing to the lawyer; what controls is whether the document was created for the purpose of obtaining legal assistance.

Privilege also gives way where the client sought services to enable a future crime or fraud, in a dispute over duties arising from the relationship, between former joint clients in civil litigation, and on a deceased client's testamentary competency or intent.

Two points on what privilege does not cover:

• Client identity and fee arrangements are generally not privileged. Narrow exception: if disclosing identity would itself reveal a privileged communication, identity is protected.

• Preexisting documents and physical evidence are not privileged merely because the client transferred them to the attorney. A document discoverable in the client's hands remains discoverable in the attorney's hands; what controls is whether the document was created for the purpose of obtaining legal assistance, and if not, no privilege attaches.

Four circumstances that void privilege:

1. Future crime or fraud: Privilege doesn't apply when the client sought legal services to enable or assist a future crime or fraud. Communications about past crimes remain fully privileged.

2. Attorney-client dispute: Privilege doesn't bar disclosure of a communication relevant to a dispute about duties from the relationship, including fee disputes, malpractice claims, and disciplinary proceedings. The lawyer may use client communications only to the extent necessary. The ethics-side permission to reveal in that same controversy is Rule 1.6(b)(5), taught in Chapter 7.

3. Former joint clients: In civil litigation between people once jointly represented by the same attorney, neither may invoke privilege against the other for matters from the joint representation.

4. Testamentary competency: Privilege gives way where the lawyer is able to give evidence of a deceased client's competency or intent regarding a will or inter vivos gift (a gift made during the client's lifetime).

The exam will describe a client who confesses a past crime and ask whether privilege protects the communication. It does. The future-crime exception strips privilege only from communications made to further a crime or fraud not yet committed.

The exam will offer "privileged because possession passed to the attorney" as a choice for preexisting documents. Wrong. Handing the document to the lawyer doesn't change its status; it stays as discoverable as it was in the client's hands.