Is attorney communicating to the client considered to be privileged?
Yes. Attorney-to-client communications may be privileged when they are confidential and made to obtain or provide legal advice. The privilege protects the communication—not underlying facts—and can be waived by disclosure to third parties.
Governing Rule
The Ninth Circuit generally applies an eight-part test:
“The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as the attorney’s advice in response to such disclosures.” United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009)
The party asserting privilege must establish that:
- Legal advice was sought or provided;
- The communication was with a professional legal adviser acting in that capacity;
- The communication related to that legal purpose;
- It was made in confidence; and
- The privilege was not waived. United States v. Ruehle, 583 F.3d 600, 607–08 (9th Cir. 2009)
The privilege includes legal advice given by the attorney in response to client disclosures, not merely the client’s statements.[1] However, communications involving primarily business, personal, or administrative advice generally are not protected. For dual-purpose communications, the Ninth Circuit applies the primary-purpose test.[2]
Important Limitations
| Protected | Generally not protected |
|---|---|
| Confidential legal advice and related client communications | Underlying facts |
| Advice concerning legal rights, obligations, or risks | Business advice unrelated to legal advice |
| Corporate counsel’s communications with employees concerning legal matters within their employment duties | Communications shared with unnecessary third parties |
In the corporate context, communications between counsel and employees may qualify when made to help the corporation obtain legal advice, even if the employee is not senior management. Upjohn Co. v. United States, 449 U.S. 383, 394–95 (1981)
“The protection of the privilege extends only to communications and not to facts.” Upjohn Co. v. United States, 449 U.S. 383, 395–96 (1981)
Accordingly, a client cannot refuse to disclose a relevant fact merely because the client previously communicated that fact to counsel.
Bottom Line
An attorney’s communication to a client is privileged when it conveys or reflects confidential legal advice and is made within the attorney-client relationship. It is not automatically privileged merely because an attorney sent it; mixed business/legal communications must be analyzed by their primary purpose, and disclosure to third parties may waive protection.