Although there are minor variations, the elements necessary to establish the attorney client privilege generally are:
- The asserted holder of the privilege is (or sought to become) a client; and
- The person to whom the communication was made:
- is a member of the bar of a court, or a subordinate of such a member, and
- in connection with this communication, is acting as an attorney; and
- The communication was for the purpose of securing legal advice.[4]
There are a number of exceptions to the privilege in most jurisdictions, chief among them:
- the communication was made in the presence of individuals who were neither attorney nor client, or was disclosed to such individuals,
- the communication was made for the purpose of committing a crime or tort,
- the client has waived the privilege (for example by publicly disclosing the communication).
A corollary to the attorney–client privilege is the
joint defense privilege, which is also called the
common interest rule.
[5] The common interest rule "serves to protect the confidentiality of communications passing from one party to another party where a joint defense or strategy has been decided upon and undertaken by the parties and their respective counsel."
[6]
An attorney speaking publicly in regard to a client's personal business and private affairs can be reprimanded by the bar and/or disbarred, regardless of the fact that he or she may be no longer representing the client. Discussing a client's or past client's criminal history, or otherwise, is viewed as a breach of fiduciary responsibilities.
The attorney–client privilege is separate from and should not be confused with the
work-product doctrine.
