Black-letter propositions
- 01
Attorney-client privilege covers confidential communications among privileged persons for legal assistance, not underlying facts.
- 02
Corporate privilege can cover employees communicating within role for legal advice; copying counsel is insufficient.
- 03
Crime-fraud, lawyer-client disputes, and joint-client later disputes are important exceptions.
- 04
Work product protects litigation-prepared materials with qualified fact protection and stronger opinion protection.
- 05
Spousal testimonial privilege in federal criminal cases belongs to the witness spouse during marriage; confidential marital communications generally survive divorce.
- 06
Other privileges depend on governing law and context.
Use this attack sequence under time
Frame the issue
Identify governing privilege law.
Resolve the next checkpoint
Name holder, participants, communication, purpose, and confidentiality.
Resolve the next checkpoint
Test waiver and scope.
Resolve the next checkpoint
Apply exceptions.
Finish the conclusion
Distinguish privilege, work product, and ethics duties.
Common wrong turns
- Facts do not become privileged when told to counsel.
- Unnecessary third-party presence usually destroys confidentiality.
- Future crime-fraud differs from discussing completed misconduct for defense.
Worked example
A client asks a lawyer to help falsify records next week.
The request is in furtherance of planned fraud and falls within crime-fraud; ordinary confidential admissions about past conduct for legal advice could be protected.
Practice this topic
Upjohn, Hickman and the spousal privileges in one place
Three cases anchor this topic. Upjohn Co. v. United States extends a corporation's attorney-client privilege to communications from employees to counsel made at the direction of superiors to secure legal advice for the company, so a lawyer's interview of a mid-level employee can be privileged even though the employee is not a decision-maker. Hickman v. Taylor is the source of the work-product doctrine, and Federal Rule of Civil Procedure 26(b)(3) now protects documents prepared in anticipation of litigation, with opinion work product, the lawyer's mental impressions, the hardest to reach.
Spousal protection comes in two forms that exam questions mix up. The confidential marital communications privilege protects private statements made between spouses during the marriage, and in most jurisdictions either spouse may claim it. The spousal testimonial privilege lets a witness spouse decline to testify against the other; under Trammel v. United States the witness spouse holds it in federal criminal cases. Identify which privilege the question invokes, whose it is and whether the marriage existed when the statement was made.
Privilege in the federal rules
Rule 501 says the common law, as interpreted by United States courts in the light of reason and experience, governs a claim of privilege unless the Constitution, a federal statute or Supreme Court rules provide otherwise. In a civil case, state law governs privilege for a claim or defense for which state law supplies the rule of decision.
Rule 502 addresses waiver of attorney-client privilege and work product. A disclosure in a federal proceeding or to a federal office or agency that waives the protection extends to undisclosed communications only if the waiver is intentional, the materials concern the same subject matter and they ought in fairness to be considered together. An inadvertent disclosure does not waive if the holder took reasonable steps to prevent and to rectify it.
Work product in civil discovery
Federal Rule of Civil Procedure 26(b)(3) protects documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative. It is a discovery rule that operates alongside the evidentiary privilege, so a fact pattern about materials prepared for a lawsuit may raise both.
Frequently asked questions
What is the controlling rule for attorney-client, work product, marital, and related protection?+
Privilege requires a protected confidential relationship and purpose and can be lost through waiver or an applicable exception.
How should I analyze attorney-client, work product, marital, and related protection on the bar exam?+
Identify governing privilege law. Name holder, participants, communication, purpose, and confidentiality. Test waiver and scope. Apply exceptions. Distinguish privilege, work product, and ethics duties.
What law governs privilege in federal court?+
The common law as interpreted by United States courts in the light of reason and experience, unless the Constitution, a federal statute or Supreme Court rules provide otherwise, per Rule 501.
Which law governs privilege in a civil case decided under state law?+
State law, according to Rule 501, for a claim or defense for which state law supplies the rule of decision.
Does an intentional disclosure waive privilege for undisclosed material?+
Only if the disclosed and undisclosed materials concern the same subject matter and ought in fairness to be considered together, under Rule 502(a).
Does inadvertent disclosure waive privilege?+
Not if the disclosure is inadvertent, the holder took reasonable steps to prevent it and promptly took reasonable steps to rectify the error, under Rule 502(b).
Is work product a privilege or a discovery protection?+
It is protected by Federal Rule of Civil Procedure 26(b)(3) as a discovery rule for materials prepared in anticipation of litigation, and Rule 502 addresses its waiver.