---
title: Attorney-Client Privilege Scope
description: An overview of the legal standards and parameters governing the attorney-client privilege doctrine in the United States.
keywords: [attorney-client privilege, legal ethics, confidentiality, evidentiary rules, civil procedure]
category: law
---

## The Attorney-Client Privilege Doctrine

The attorney-client privilege is a well-established legal doctrine that protects certain communications between a client and their attorney from compelled disclosure. This privilege is rooted in the fundamental right to effective legal representation and the public policy interest in encouraging open and honest communication between clients and their counsel. As the Supreme Court has recognized, the privilege "is intended to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

The parameters of the attorney-client privilege are primarily governed by the common law, as developed through judicial decisions, with certain statutory codifications. Under the traditional test, the privilege applies to: (1) a communication; (2) made between a client and their attorney; (3) in confidence; (4) for the purpose of obtaining or providing legal advice. United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950). The party asserting the privilege bears the burden of establishing each of these elements. In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000).

## Scope of the Privilege

The attorney-client privilege protects a wide range of communications, including not only direct exchanges between a client and attorney, but also communications involving agents of the attorney (such as paralegals or investigators) or communications made in the presence of third parties where necessary to facilitate the legal representation. Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002). However, the privilege is not absolute and is subject to certain exceptions and limitations.

For example, the privilege does not apply to communications made in the presence of third parties who are not necessary for the legal representation, as this compromises the required element of confidentiality. United States v. Ackert, 169 F.3d 136, 139 (2d Cir. 1999). Additionally, the privilege does not protect communications made for the purpose of obtaining business or personal advice, rather than legal advice. In re Cnty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007). The privilege also does not apply to communications made in furtherance of a crime or fraud, under the crime-fraud exception. United States v. Zolin, 491 U.S. 554, 563 (1989).

## Waiver of the Privilege

Even where the attorney-client privilege initially applies, it can be waived through the voluntary disclosure of the privileged communications to third parties. The privilege is considered a personal right of the client, and the client holds the power to waive it. Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991). A waiver may be express, such as the client directly disclosing the privileged information, or implied, such as the client placing the communications at issue in litigation. Sedco Int'l, S.A. v. Cory, 683 F.2d 1201, 1205 (8th Cir. 1982).

The scope of a waiver can also be limited. For example, a client may waive the privilege as to certain communications but maintain it for others. United States v. Nobles, 422 U.S. 225, 239 (1975). Additionally, the disclosure of a privileged communication to a third party does not necessarily waive the privilege as to other, undisclosed communications on the same subject matter. In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989).

## Corporate Attorney-Client Privilege

The attorney-client privilege also applies to communications involving corporate clients, though the application is somewhat more complex. The Supreme Court has held that the privilege extends to communications between corporate employees and the corporation's attorneys, where the communications are made at the direction of corporate superiors in order to secure legal advice. Upjohn, 449 U.S. at 394. This is known as the "subject matter" test, as opposed to the more narrow "control group" test that some courts had previously applied.

Under the Upjohn standard, the privilege may cover a wide range of employees, from senior executives to lower-level personnel, provided their communications are made for the purpose of obtaining legal advice for the corporation. Id. at 391-92. However, the privilege does not extend to communications made by corporate employees purely for business purposes, even if those communications are later shared with corporate counsel. In re Cnty. of Erie, 473 F.3d at 420.

## Exceptions and Limitations

As noted above, the attorney-client privilege is subject to certain exceptions and limitations. In addition to the crime-fraud exception, courts have recognized other exceptions, such as the "fiduciary exception," which can apply in the context of trusts and other fiduciary relationships. Under this exception, beneficiaries may be able to access communications between a fiduciary and their attorney, where those communications relate to the fiduciary's administration of the trust or other fiduciary duties. Riggs Nat'l Bank of Wash., D.C. v. Zimmer, 355 A.2d 709, 713-14 (Del. Ch. 1976).

Furthermore, the privilege may be subject to compelled disclosure where the information is deemed "essential" to a fair adjudication of the case. Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996). This is a high bar, and courts generally will not override the privilege absent a showing of compelling need. Id. at 10.

## Conclusion

The attorney-client privilege is a fundamental tenet of the American legal system, promoting open communication between clients and their counsel. While the privilege is broad in scope, it is not without limits, and courts have recognized various exceptions and limitations to protect competing interests. Attorneys and their clients must carefully navigate these nuances to ensure the privilege is properly invoked and maintained.