Barkett Dives Deep on Attorney-Client Privilege

Shook Partner John Barkett has authored an article for the American Bar Association’s Litigation Journal on the intricacies of attorney-client privilege, including who it covers and when it has been waived. 
“The attorney-client privilege is a crown jewel of the legal profession,” Barkett writes. “Many lawyers don’t understand its contours, yet know that when they provide legal advice to a client, that information is protected from disclosure by common law—or, depending on the jurisdiction, by statutory or procedural rules—as long as the privilege has not been waived and no exception applies. But the attorney-client privilege is inconsistent with the truth-seeking function. It conceals information even when that information may be essential to determining facts. Thus, it is not unusual to read judicial decisions narrowing its application. Nor is it surprising that lawyers have had to confront numerous forks in the road in deciding when to assert the privilege or how to protect information as privileged.”
Barkett covers a number of issues, including electronically stored information, selective waiver, common interest and privileged documents. “The attorney-client privilege is a delicate evidentiary gift to lawyers. It should be properly packaged, zealously safeguarded, and objectively respected,” he concludes. “Lawyers who do so will stay on the path to privilege protection. Lawyers who don’t may find that there is no way to turn back.”