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A Practical Guide to the Attorney-Client Privilege
"A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation."(1)
In General
The attorney-client privilege is the oldest privilege for confidential information recognized at common law. Nevertheless, the attorney-client privilege is not unlike the testimonial privilege which has been extended to other professions including physicians, psychologists, accountants, and the clergy. The privilege is intended to encourage full and frank communication between the client, patient, or penitent and the professional.
More specifically, the attorney-client privilege recognizes that sound legal advice depends on the lawyers being fully informed by the client. The purpose of this privilege is to encourage a client to provide all relevant information to the attorney and to protect advice given during the course of the attorney-client relationship. Were it otherwise the client would be reluctant to confide in legal counsel. The Arizona Supreme Court has held that "[t]he reason for the privilege is not to protect the client, but to encourage free exchange of information between the attorney and client and to promote the administration of justice. Neither the client nor the attorney can be compelled to disclose these communications against the client's wishes."(2)
The elements required to establish the attorney-client privilege are as follows:
- a communication;
- made between privileged persons;
- in confidence; an
- for the purpose of seeking, obtaining, or providing legal assistance to the client.
Additionally, "the privilege must be affirmatively raised and cannot have been waived."(3)
In Arizona
Since prior to statehood, Arizona courts have recognized a common law attorney-client privilege; however, Arizona courts did not interpret the statute which codified the common law privilege until 1958. More recently, ARS § 12-2234 was amended by the Arizona Legislature in direct response to a decision of the Arizona Supreme Court. The 1994 amendment extended the scope of the attorney-client privilege in civil proceedings to include paralegals and legal assistants in addition to attorneys, their stenographers, and clerks. The amendment also expressly extended the privilege to corporations and governmental entities.
Frequently Asked Questions
- Who holds the privilege?
The client, not the attorney, has the ultimate authority to assert the privilege. However, as a technical matter either the attorney, as the client's agent, or the client will claim the privilege. - Who is the client?
The client in this context is the intended beneficiary of the legal services. It is now well established that a corporation can assert the privilege and in Arizona governmental entities, including the Arizona Board of Regents, are covered by statute in civil proceedings. The more difficult question is which corporate or governmental employees speak on behalf of the client organization. Unlike other jurisdictions, ARS § 12-2234 "makes all communications between corporate counsel and a corporate officer, employee or agent privileged if they were (1) for the purpose of providing legal advice to either the corporation or the employee, or (2) for the purpose of obtaining information in order to provide such legal advice."(4) - Can the privilege be waived?
Yes. The privilege may be waived in a variety of circumstances. For example, if the communication is not made in confidence or is subsequently disclosed to a third party a waiver has occurred. Disclosure may be intentional, compelled by legal process, or even inadvertent. An example of the latter is if the communication occurs in a setting without a reasonable expectation of privacy. - Are agents of the attorney bound by the privilege?
Yes. According to Arizona law an attorney's paralegal, legal assistant, secretary, stenographer, and clerk are all covered by this testimonial privilege statute. This is recognition by the Legislature that the practice of law requires, of necessity, the assistance of non-lawyer assistants. Information provided to any such person is subject to statutory protection. - Does the privilege obtain regardless of the medium of communication?
The answer to this question is a qualified yes in Arizona as this is a developing area of the law. Arguably, the attorney-client privilege may be successfully asserted if the communication occurs in person, over the telephone (land-line, cordless or cellular), via the fax machine, or in e-mail over the Internet. It is also the case that some jurisdictions have denied the attorney-client privilege when certain of these technologies have been utilized. - Is everything I say to my lawyer privileged?
No. The communication must be made to a lawyer acting in a legal capacity. Thus, if a lawyer is giving business advice, as opposed to legal advice in connection with a business transaction, no privilege will attach to such communications. Also, the attorney-client privilege may not be used as a shield for a contemplated future crime or fraud. Finally, the Arizona Court of Appeals has held "[t]he privilege protects communication between lawyer and client, it does not extend to facts which are not part of the communication between lawyer and client."(5)
Footnotes
1. Arizona Rules of Professional Conduct, Ethical Rule 1.6(a)(1983)
2. State v. Holsinger, 601 P.2d 1054, 1058 (1979).
3. Edna S. Epstein, The Attorney-Client Privilege and the Work Product Doctrine, ABA Section of Litigation, 35 (3d ed. 1997).
4. Daniel J. McAuliffe, Arizona Civil Rules Handbook, Rule 501, Arizona Rules of Evidence, 763 (1997).
5. Ulibarri v. Superior Court, 909 P.2d 449, 452 (Ariz. App. 1995).
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