Attorney-CLient Privilege

Question 1

Elements

Answer 1

1) Communication
2) In confidence
3) Between lawyer and client
a. Communications with agents of the lawyer are also privileged
b. This includes a client or prospective client and includes communications from lawyer to the client and the client to the lawyer
4) For the purpose of seeking legal advice

Question 2

Waiver

Answer 2

1. Express waiver by client
2. Waiver by inaction (the lawyer fails to object to a request for privileged information)
3. Waiver by revealing info to a third person
4. Lawyer waiver: can waive on behalf of client because he is his agent. But lawyer must have express or apparent authority to do so.
5. Waiver by putting communication into question in teh case.

Question 3

Crime-Fraud Exception

Answer 3

An otherwise privileged communication will not be protected when a client consults a lawyer to further a crime or fraud.

Client’s INTENTION is what determines whether exception applies.

Applies:

• Even if the lawyer does not do anything to advance the crime or fraud
• Even if the lawyer does not know that his advce is being south in furtherance of a crime or fraud
• Even if the client doesn’t know the conduct is illegal

DOES NOT APPLY:

• if C asks whether cetain conduct is legal but does not ask for advice on how to commit the crime
• If C asks if past act is criminal.