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attorney-client privilege

Question

APA format 6-8 paragraphs must have references& must be sighted on paper.
What is attorney-client privilege?
What factors must be present for attorney-client privilege to apply?
What is the reasoning behind granting attorney-client privilege?
When does attorney-client privilege not apply to attorney-client communications (i.e., how can it be waived and how can it be voided?)

Answer

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The term ‘attorney-client privilege’ is often used in reference to an evidentiary rule that protects a lawyer and his client from being compelled by anyone into disclosing confidential information. This privilege is designed in order to foster open, frank and uninhibited discourse between attorneys and their clients. According to McLucas, Shapiro, & Song (2006), this ensures that the needs of the client are fully addressed by the attorney. The attorney is always thoroughly prepared and cognizant of all the information that the client may provide in court.

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According to Rice (1998) points out that in order for the attorney-client privilege to be asserted, four conditions must be present. The first one is a client; the client is the privilege holder. At the time of disclosure to the attorney, the client seeks to be identified as the client. Secondly, there must be a legal representation. In other words, the communication must have been made to an attorney in the process of legal representation.

Thirdly, the communication must have been made in confidence. This means that communication with the client or the prospective client should have been made in the absence of strangers. It also must have been made for purposes of securing legal services or a legal opinion. Lastly, the privilege is asserted or claimed (not waived) by the client.

The attorney-client privilege can be traced back to the days of ancient Rome, whereby governors were not allowed to call their advocates (Hazard, Jr., 1978). This rule was established out of the genuine concern that the governors would easily lose confidence in their defenders. In 1577, the English common law recognized the attorney-client privilege. This was the first evidentiary privilege to be established in the English common law, thus ensuring that attorney-client communications were always of a confidential nature. It did not matter whether these communications took place in a public or a private setting. This approach was adopted by the American colonies, with Delaware being the first colony to codify it in 1776.

Through the attorney-client privilege, the client and his lawyer ensure that the courts or adversaries will not compel them to disclose crucial information. Through this privilege, the ethical obligation to maintain the confidence of the information he gets from his client is asserted.

The attorney-client privilege, as with any other privilege, is not absolute. It is always subject to some exceptions and the possibility of a waiver by a statute, client or attorney. However, waiver tends to be a voluntary measure that is outside the litigation course. This privilege is considered to be vested in the client. Therefore, the client cannot waive the privilege; it can only be waivered by either the attorney or the attorney’s conduct. For example, if the attorney does not object to the disclosure of material that is privileged in the course of litigation, this can amount to such a waiver.

            There are two main types of waivers: intentional waiver, and common pitfalls and inadvertent waiver. The attorney-client privilege is said to have been intentionally waived when it is expressly waived by the client. However, seemingly unintended disclosure of communication may also be considered an intentional waiver.

            Although cases that involve voluntary disclosure of privileged communications are fairly straightforward, there are many pitfalls that need to be avoided. A disclosure that results from common pitfalls is more difficult to figure out. This could be the reason why many jurisdictions differ in the amount of communication that can be ‘voluntarily’ waived. Court rulings tend to be dependent on nature and disclosure.

            Both attorneys and clients should play their respective roles in order to avoid both intentional and unintentional waiver of attorney-client privilege. Clients and corporations need to labor all materials used in litigation as ‘confidential’. Additionally, both parties should only discuss anticipated topics so that segregation is made between privileged and non-privileged information.

References

Hazard, Jr. G. (1978) A Historical Perspective on the Attorney-Client Privilege, California Law Review, 66(5), 1061-1091.

McLucas, W., Shapiro, H. & Song, J. (2006) The Decline of the Attorney-Client Privilege in the Corporate Setting, The Journal of Criminal Law and Criminology 96(2), 621-642.

Rice, P. (1998) Attorney-Client Privilege: The Eroding Concept of Confidentiality Should Be Abolished, Duke Law Journal, 47(5), 853-898.

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