The attorney-client privilege, the oldest evidentiary privilege known to the common law, is an exception to one of the main policies behind the paramount rule of evidence that relevant evidence is admissible at trial. In this regard, the attorney-client privilege is an obstruction to the search for the truth. The privilege protects confidential attorney-client communications made for the purposes of obtaining legal advice. While many attorney-client communications are confidential, they are not privileged unless they were made for obtaining legal advice. The attorney-client privilege is designed to facilitate free attorney-client communications without the fear of unwanted disclosure so that clients can receive competent legal advice from their lawyers.

Although its title should be self-evident, in reality, the attorney-client privilege is often perverted by litigators to be strategically used as a sword. The privilege is often abused, particularly in the context of the corporate attorney-client privilege. And the courts in the commonwealth provide very little guidance on addressing potential attorney-client privilege abuse issues. See, e.g., Zack Needles, “Justices Won’t Hear First-Impression Attorney-Client Privilege Issue,” The Legal Intelligencer, (April 4, 2019).

The Attorney-Client Privilege ‘Ruse’

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