Attorney Client Privilege Concepts in the United States

The purpose for attorney-client privilege is to encourage open communications between the attorney and client. Every client of every attorney—regardless of the legal advice or assistance sought—is subject to discovery demands that could reveal privileged information.

Attorney-Client Privilege concepts traces the historical development of the attorney-client privilege, of court interpretations and the scope of protection. There are problem areas for claiming the privilege; traditional exceptions to the privilege; waiver issues; e-mail and the privilege; the availability of the privilege in shareholder suits, in the partnership context, and for special committees of boards of directors; and alternative forms of protection, such as the trade secrets privilege and statutory measures.

Main issues in attorney-client privilege:

• Attorney-Client Privilege: Historical Developmen. Law of witnesses
• Barristers, attorneys, and solicitors
• Constitutional issues in the Union States. First Amendment right to free speech. Fourth Amendment protection against unreasonable searches and seizures. Fifth Amendment privilege against compelled self-incrimination. Fifth Amendment right to due process. Sixth Amendment right to eective assistance of counsel. Sixth Amendment right of the accused to confront the witnesses against him
• Procedures in Attorney Client privilege cases
• Condentiality agreements
• US Rule 501 and Choice of Law on Attorney Client Privilege
• Which portions of communications will be privileged?
• What constitutes legal advice or assistance?
• Other Protections for Confidential Corporate Information

1. Trade secrets
2. Statutory protection
3. Work-Product Doctrine

• Availability of Attorney Client Privilege to Corporations
• Client Identity
• Communications Covered by the Corporation’s Privilege
• Upjohn Co. v. United States case
• Acting as Attorney
• Inside Counsel
• Outside Counsel
• Effect of Non-Membership in Local Bar
• Associates, Paralegals, Secretaries
• Communications Between Attorney and Client
• Existence of Attorney-Client Relationship
• Inter-Attorney Communications
• Communications Made in Confidence
• Waiver of Privilege. Voluntary Waiver; Failure to Claim Privilege
• DOJ Corporate Waiver Guidelines
• Corporate Internal Investigations
• Privilege Logs
• Inadvertent Disclosure
• Required Disclosures
• Fax and E-Mail Communications and the Attorney Client Privilege
• Traditional Exceptions to Privilege. Prospective Crime or Fraud. Intentional Torts, Joint Attorney & Defense
• United States: Impact of the Sarbanes-Oxley Act and the Amendments to the Ethics Rules
• Rejection of Unavailability Exception
• Access to Privileged Materials by General Partners and  by Limited Partners
• US IRS Investigations/Tax Shelters. Taxpayer Privileged Communications, Statutes and The Section 7525
• Bill of discovery’s limitation and Exception to bill of discovery
• Radclie v. Fursman case
• Litigation limitation in the United States of the Attorney-client privilege
• Duration of Attorney Client privilege
• Bar membership and the privilege
• Agent of attorney. His obligation to preserve condentiality of client’s communications
• Foreign attorneys and the privilege
• Jailhouse lawyers
• Tax practitioners (including accountants)
• Lawyer who is accountant
• Trademark agents and the privilege
• Witness and the privilege
• Should attorney-client privilege be available to corporations?
• “Control group” test, its problems and alternatives (“Subject matter” test)
• Communications between parent and subsidiary corporations
• Who may waive corporation’s attorney client privilege?
• What wrongs preclude application of privilege?
• Shareholder actions against directors
• Burden of persuasion and the privilege
• Director’s counsel versus corporation’s counsel
• Who can waive the Attorney´s privilege?
• Voluntary disclosure or use of privileged communications
• Use of attorney´s client privilege in communications into litigation
•  Inadvertent disclosures. What constitutes inadvertence?
• “Community of interests” in joint or common defense
• Attorney´s privilege in Trusts and Unincorporated entities (Trade associations and partnerships)
• Direct protection for client to attorney communications; derivative protection for attorney to client communications
• Expanding direct protection to attorney communications
• Communications from attorney’s agent to attorney or client
• Must document authored by attorney be communicated to client for protection to apply?
• Preparatory communications and Pre-existing documents; copies of business correspondence
• Confidentiality
• Technical and public information within attorney-client communications not protected

The Privilege in the world:

• Attorney Client Privilege in Asia
• Attorney Client Privilege in Europe
• Attorney Client Privilege in the United States
• Attorney Client Privilege in Latin America