The Attorney-Client Privilege Protects Communications, Not Facts

June 4, 2003

The attorney-client privilege protects certain communications between lawyers and clients, but generally does not protect from disclosure facts that the client has learned—even from a lawyer.

In Henry v. Champlain Enterprises, Inc., 212 F.R.D. 73, 91 (N.D.N.Y. 2003) (citation omitted), the court explained that a questioner cannot directly ask what clients discussed with their lawyers, but that “the privileges do not protect the client’s knowledge of the relevant facts, whether they were learned from counsel or facts learned from an attorney from independent sources.”

This important distinction can have dramatic effects during depositions. For instance, a questioner normally can ask deponents what they know, but not whether they learned it from their lawyer. Lawyers should become familiar with these subtle distinctions.