Does the Attorney-Client Privilege Protect Lawyer-to-Client Communications

January 25, 2001

The attorney-client privilege primarily protects communications from clients (or their representatives) to their lawyers (or the lawyers’ agents). Communications running the other way (from lawyer to client) might or might not be protected, depending on the pertinent court’s attitude.

The recent decision in Smithkline Beecham Corp. v. Apotex Corp., No. 98 C 3952, 2000 U.S. Dist. LEXIS 13606, at *15 (N.D. Ill. Sept. 12, 2000) (emphasis added) represents one approach. In Smithkline, the court held that “[c]ommunications from an attorney to his or her client are protected only if the client can ‘demonstrate with reasonable certainty that the lawyer’s communication rested in significant part on the client’s confidential disclosure.'” This standard might not protect lawyer-originated communications that do not reflect what the client had told the lawyer.

Lawyers seeking attorney-client privilege protection for their communications should acknowledge the client’s transmission of confidential information to the lawyer and the lawyer’s reliance on that information in providing legal advice back to the client.