Does the Attorney-Client Privilege Cover Lawyers’ Opinions About Their Clients’ Competence?

September 17, 2003

The attorney-client privilege normally covers the substance of communications between clients and their lawyers. However, in at least two particular circumstances, courts must determine whether the privilege also protects lawyers’ opinions about their clients’ competence (which at least arguably derives from privileged communications). The first situation involves an estate lawyer’s thoughts about a testator’s competence—some courts protect the lawyer’s opinion in that circumstance, and some do not.

The second situation involves a criminal lawyer’s opinion about a criminal defendant’s competence when entering a plea. The court in State v. Meeks, 666 N.W.2d 859, 2003 WI 104, P40 (Wis. 2003) noted the judicial debate about this scenario, but finally agreed with those courts that “hold that an attorneys [sic] opinions, perceptions, and impressions of a client’s competency to proceed are protected by the attorney-client privilege,” because such an opinion is “based largely upon private communications with the client.”

Lawyers should become familiar with the type of “communications” that may deserve privilege protection—some courts take a surprisingly broad view of that term.