HE ATTORNEY-CLIENT privilege is one of the oldest and most well-known principles of our legal system. English courts began recognizing a version of the attorney-client privilege as long ago as 1500, and since then, attorneys and clients alike have come to believe that their communications are cloaked with nearly absolute secrecy. But, combined with the popularity of this ancient legal doctrine are a lot of misconceptions about the application and the scope of the privilege. The truth is that the attorney-client privilege does not provide the type of ironclad protection that many clients and practitioners seem to expect.

In a litigation context, an adversary’s misconceptions about the privilege can provide opportunities to discover valuable information that he or she assumed was inviolate. However, given the very fact that the adversary assumes that the information is not discoverable, it sometimes can be difficult to unearth this material. Indeed, in many cases, an adversary simply may fail to disclose the existence of “obviously privileged” material in response to a discovery demand or properly worded question. More responsible adversaries will identify the information, yet assert the privilege and decline to make it available. In either situation, only a litigator who is sensitive to the limitations of the attorney-client privilege will be in a position to uncover and pry loose potentially devastating details about an adversary’s case.

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