Attorney-Client Privilege: Contemporary Decisions (Litigator Series)

This casebook contains a selection of Federal Court of Appeals decisions that interpret and apply the attorney-client privilege in evidentiary rulings of civil cases. The decisions span from 2001 to the date of publication.

By safeguarding communications between attorney and client, the privilege encourages disclosures that facilitate the client's compliance with law and better enable him to present legitimate arguments when litigation arises. United States v. Mass. Inst. of Tech., 129 F.3d 681, 684 (1st Cir.1997); see Upjohn v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The privilege is not limitless, however, and "courts must take care to apply it only to the extent necessary to achieve its underlying goals." In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir.2003). In other words, "the attorney-client privilege must be narrowly construed because it comes with substantial costs and stands as an obstacle of sorts to the search for truth." Id. (citing United States v. Nixon, 418 U.S. 683, 709-10, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)).

There is a possible extension of the privilege when a third party helps the lawyer give legal advice. (Citation omitted.)

Lluberes v. Uncommon Productions, LLC, 663 F. 3d 6 (1st Cir. 2011)