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NCJ Number
American Criminal Law Review Volume: 30 Issue: 3 Dated: (Spring 1993) Pages: 1011-1024
R G Greenberg; J Klingsberg; D Mulligan
Date Published
14 pages
This review of the nature and implications of the attorney-client privilege of confidential communications considers how this doctrine applies to corporate clients, waiver of the privilege, the crime-fraud exception, attorney subpoenas, and how the attorney ethical obligation to hold communications with clients confidential differs from the legal doctrine of privileged communications.
The attorney-client privilege, the oldest of the common law privileges, is an exception to the general duty to disclose discoverable evidentiary information. The underlying theory of the attorney-client privilege is the protection of "interest and relationships that are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice." Corporations, as well as individuals, are entitled to invoke the attorney-client privilege to protect confidential information. The attorney- client privilege protects communications unless and until the client waives it, either explicitly or implicitly. The crime-fraud exception specifies that the privilege does not extend to the client who seeks advice to aid him in carrying out an illegal or fraudulent scheme. In most cases, the identity of a client and the arrangements surrounding the client's payment of attorneys' fees is not privileged. Consequently, an attorney might properly by subpoenaed to divulge such information. The attorney's ethical obligation of confidentiality is broader in scope than the evidentiary privilege. 101 footnotes


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