If Justice Louis Brandeis was right and sunshine is indeed the best disinfectant, think of attorney-client privilege as sunscreen. When applied properly, it protects against the effects of overexposure. More precisely, it can help keep clients who take a lot of heat from getting burned.

Unfortunately, the strength or shelf life of the protection conferred by the attorney-client privilege is not listed on any bottle. The privilege permits both attorneys and clients to prevent their confidential communications from being revealed in a lawsuit or an investigation, but it is ultimately the client’s privilege. And because the scope of the privilege often depends on the client’s actions in litigation, it usually ends up being defined and conscribed by a court. A privilege that used to be inviolate, once invoked, has evolved into such a standard litigation pawn that the Supreme Court is presently considering, in Mohawk Industries v. Carpenter, whether a party may immediately appeal a court order to disclose materials the party believes are privileged. So, depending on what a client or a court does, lawyers may find themselves having to brace the elements sans protection.

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