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Legal Memorandum: Attorney-Client Privilege

Issue: Whether a Fax Sheet Communication is Protected by Attorney-Client Privilege Under Federal Law.

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Attorney-client privilege; Professional legal advice; Fax sheet communication
Jurisdiction: Federal
Cited Cases: 914 F. Supp. 1084; 449 U.S. 383; 306 F. Supp. 2d 58
Cited Statutes: Restatement Law Governing Lawyers § 72
Date: 11/01/2005

The attorney-client privilege is the oldest of all common-law privileges for confidential communications. Upjohn Co. v. United States, 449 U.S. 383 (1981). It protects confidential communications between an attorney and his client made for the purpose of furnishing or obtaining professional legal advice.  See Potts v. Allis Chalmers Corp., 118 F.R.D., 602 (N.D. Ind. 1987).  “[Because] the privilege obstructs the search for truth and because the benefits are, at best, ‘indirect and speculative’, it must be ‘strictly confined’ within the narrowest possible limits consistent with the logic of its principle.” Harding v. Dana Transport, Inc., 914 F. Supp. 1084 (citing In re Grand Jury Investigation, 599 F.2d 1224, 1245 (3d Cir. 1979)).

The Third Circuit has enumerated the traditional elements of the privilege:

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate, and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the lawyer was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) legal services or (ii) the assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and […]

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