The privileged information may remain private as long as a court does not force disclosure. The attorney-client privilege is not absolute. It does not apply in the following: (1) if a client hires an attorney to commit a fraud or crime; (2) if two or more clients hire the same lawyer in matters of common interest and later sue each other, the privilege may be waived if the lawyer becomes a witness in the dispute; (3) if the lawyer and client sue each other and suit involves issues of the breach of duty, the privilege is waived; (4) when a lawyer witnesses the signing of a document, such as a will, the privilege is waived.
As a basic tenet in the judicial system, the privilege is an ancient device, it can be found even in Roman law—for example, Marcus Tullius Cicero, while prosecuting the governor of Sicily, could not call the governor’s advocate as a witness, because if so, the governor would have lost confidence in his own defender. Over the years, the confidence between an attorney and his/her client further developed with reforms in the English common law.
But because this privilege necessitates balancing competing interests, it defies a rigid definition. However, in United States v. United Shoe Machinery Corporation, the court specified five requirements: (1) the person asserting the privilege must be a client or must have sought to become a client at the time of disclosure; (2) the person connected to the communication must be acting as a lawyer; (3) the communication must be between the lawyer and the client exclusively—no non-clients may be included in the communication; (4) the communication must be for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime; (5) the privilege may be claimed or waived by client only (and usually through counsel).
A client is not always a person; a corporation may have a right to the attorney-client privilege. The Supreme Court’s decision in Upjohn v. United States, 449 U.S. 383, ensured greater protection for confidential information to be exchanged between a corporation and its lawyers. In the mid-1970s, Upjohn faced accusations of making payments to government foreign officials to secure business. When the IRS wanted investigative documents that Upjohn left to its lawyers, the company refused and stated they were privileged. The court ruled in favor of Upjohn and this decision became the standard for determining the nature of services—legal or business—provided by the corporate attorney.
By the early 1990s, the privilege was narrowed by federal laws intended to combat money laundering, specifically drug trafficking. The law required attorneys to disclose to the government any cash payment in excess of $10,000 and the name of the client making the payment (26 U.S.C.A., Section 6050 l). Moreover, courts have also been more open in mandating corporate attorneys to disclose documentation and communication in cases like the Enron or Arthur Andersen corporate meltdown.
While some attorneys have been critical of the federal government’s position in such cases, the attorney-client privilege remains useful as a defensive measure in more general circumstances. Rooted in ancient principles, it fosters trust within this important relationship and helps attorneys fully develop their client’s cases by encouraging complete disclosure.