What is the test for attorney client privilege?

The Ninth Circuit generally applies an eight-part test for attorney-client privilege:

1. Legal advice was sought;
2. From a professional legal adviser acting in that capacity;
3. The communication related to that purpose;
4. The communication was made in confidence;
5. By the client;
6. With the client’s expectation that it would remain permanently protected from disclosure;
7. By the client or attorney; and
8. The privilege was not waived.[1]

The party asserting privilege bears the burden of establishing each element.[2]

“The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.”[3]

Dual-Purpose Communications

For communications involving both legal and nonlegal advice, the Ninth Circuit applies the primary-purpose test: courts ask whether the communication’s primary purpose was to give or receive legal advice, rather than business or tax advice.[4] The Ninth Circuit has not decided whether “a primary purpose” may suffice where legal advice is one of multiple equally significant purposes.[5]

The Ninth Circuit rejects importing the broader “because of” test from the work-product doctrine into attorney-client privilege analysis.[5]

Important Limitations

• The privilege protects communications, not underlying facts.[6]
• Merely communicating with a lawyer does not make the communication privileged; the lawyer must be acting as a legal adviser.[7]
• Voluntary disclosure to a third party generally waives attorney-client privilege, subject to recognized agency and common-interest principles.[8]
• In federal-question matters, federal common law governs under Fed. R. Evid. 501. In civil cases where state law supplies the rule of decision, state privilege law applies.[9]