🤫 What Is the Attorney-Client Privilege?

According to the Massachusetts Guide to Evidence,

A client has a privilege to refuse to disclose and to prevent others from disclosing confidential communications made for the purpose of obtaining or providing professional legal services to the client.

See Mass. G. Evid. §502(b).

This privilege can be waived by only the client. It includes nearly all direct communications between a lawyer and his client that pertain to the legal representation. The privilege even extends to to persons

whose intervention is necessary to secure and facilitate the communication between attorney and client as interpreters, agents, and attorneys’ clerks.

See Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609 (2007).

Nevertheless, there are several exceptions to the privilege which lawyers and their clients should keep in mind. These are laid out in Mass. G. Evid. §502(d):

The attorney-client privilege does not apply to the following:

(1) Furtherance of Crime or Fraud. If the services of the attorney were sought or obtained to commit or to plan to commit what the client knew or reasonably should have known was a crime or fraud;

(2) Claimants Through Same Deceased Client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(3) Breach of Duty or Obligation. As to a communication relevant to an issue of breach of duty between an attorney and client;

(4) Document Attested by an Attorney. As to a communication relevant to an issue concerning an attested document to which the attorney is an attesting witness;

(5) Joint Clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any one of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients.

This evidence rule does not cover “attorney work product” which, instead, is protected by the state’s discovery rules. According to the Supreme Judicial Court,

The Massachusetts work product doctrine is codified in rule 26 (b) (3)…By its terms the rule protects a client’s nonlawyer representatives, protecting from discovery documents prepared by a party’s representative “in anticipation of litigation.” The protection is qualified, and can be overcome if the party seeking discovery demonstrates “substantial need of the materials” and that it is “unable without undue hardship to obtain the substantial equivalent of the materials by other means.” There is a further limitation: the court is to “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” This so-called “opinion” work product is afforded greater protection than “fact” work product.

See Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 314 (2009); Mass. R. Civ. P. 26(b)(3).