EXCEPTIONS TO THE ATTORNEY-CLIENT PRIVILEGE
There are some public policy exceptions to the application of the attorney-client privilege. Some of the most common exceptions to the privilege include:
Death of a Client. The privilege may be breached upon the death of a testator-client if litigation ensues between the decedent's heirs, legatees or other parties claiming under the deceased client.
Fiduciary Duty. A corporation's right to assert the attorney-client privilege is not absolute. An exception to the privilege has been carved out when the corporation's shareholders wish to pierce the corporation's attorney-client privilege.
Crime or Fraud Exception. If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of legal counsel, such communications are privileged unless the client considers covering up the crime or fraud.
Common Interest Exception. If two parties are represented by the same attorney in a single legal matter, neither client may assert the attorney-client privilege against the other in subsequent litigation if the subsequent litigation pertained to the subject matter of the previous joint representation.
In addition to these more traditional policy exceptions to the application of the privilege, recent events remind us that the privilege is not at all absolute. In the wake of the events of September 11, 2001, for example, Congress enacted, in swift fashion, the USA Patriot Act, allowing for, among other things, increased authority to conduct searches and monitor activity without judicial intervention.28 The USA Patriot Act led to a number of new rules and executive orders from the Bush Administration, including the widely criticized Bureau of Prisons Rule.29 This rule "authorizes the Attorney General to order the [Bureau of Prisons] Director to monitor or review communications between inmates and lawyers for the purpose of deterring future acts that could result in death or serious bodily injury to persons or property."30 All that is required before such monitoring can begin is a "reasonable suspicion . . . that a particular inmate may use attorney-client communications to facilitate acts of terrorism."31 Although the long-term effects of this new rule cannot be known, one is reminded that the privilege itself is not immune from the political climate in which we live.
MATTERS NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE
Not all components of the attorney-client relationship are protected by or encompassed within the attorney-client privilege. For example, the existence of the attorney-client relationship or the length of the relationship are not privileged bits of information.32 In fact, the general nature of the services performed by the lawyer, including the terms and conditions of the retention, are generally discoverable.
The factual circumstances surrounding the communications between an attorney and a client, such as the date of the communication and the identity of persons copied on correspondence, are likewise not privileged. Participants in a meeting with an attorney, the length of a consultation and the documents evidencing same (e.g., calendars, appointment books) are not necessarily protected from compelled disclosure.33 As for the fee arrangement between an attorney and a client, these documents are typically discoverable, except where such discovery would produce confidential communications with the client.34