The attorney client privilege ultimately belongs to the client and only the client has the capability of waiving it. However, it is important to realize that the privilege comes from the attorney’s role and the privilege as much protects the legal consultants from violating their ethical duties to the client. Rule 502 of the federal rules of evidence spell out explicitly the federal law of privileges as well as several waivers and limitations to waivers. The case law most relevant to the issue is US v. United Shoe Machinery Corp., which set out five requirements for privilege to occur: the client must assert the privilege, the person that the information was communicated to was a lawyer or support staff, the communication must have been exclusively between the lawyer and the client, the discussion occurred in the context of receiving a legal opinion, and the waiver belongs to the client and not the attorney.
Privilege may be found not to apply if individuals not associated with the legal matter heard the communication between the attorney and the client. For instance, a business advisor present would render those communications non-privileged. Furthermore, an attorney has an obligation to disclose information that will prevent a crime or a fraud in the future and taking part in criminal activity would also void the privilege. Finally, upon death of the client there is no more confidentiality and an attorney can be compelled to give testimony about his demised client for the purposes of probate administration.
Evidentiary privileges have an extremely long history in the western legal heritage. Indeed, it appears that Cicero invoked an Attorney-Client privilege in ancient Rome on similar rationales to theories of privilege that are held today. Evidentiary Privileges insure that in our most vital relationships we are able to be fully candid without fear of state retribution. However, as highly as they are regarded, it is important to remember that they are ultimately fragile and can be broken beyond repair should a non-necessary third party be present, or if the non-client party oversteps the bounds of reasonable conduct.
“Attorney-Client Privilege” Legal-Dictionary TheFreeDictionary.com, accessed August 28, 2013, http://legal-dictionary.thefreedictionary.com/attorney-client+privilege
“Federal Rules of Evidence (2013)” http://federalevidence.com/. accessed August 28, 2013, http://federalevidence.com/rules-of-evidence#Rule501
Gray, Lawrence. “Evidentiary Privileges Fifth Edition (Grand Jury, Criminal and Civil Trials).” New York State Bar Association. 2012. http://www.nysba.org/AM/Template.cfm?Section=Home&ContentID=117613&Template=/CM/ContentDisplay.cfm.