Unlike the rules-based work product doctrine, the attorney-client privilege developed organically in every United States jurisdiction. However, states have chosen different places to articulate their privilege protection. States have memorialized their attorney-client privilege in their common law, in statutory law, in evidentiary rules, or in a combination of those sources.
In Garcia v. Progressive Choice Insurance Co., Case No. 11-CV-466-BEN (NLS), 2012 U.S. Dist. LEXIS 105932, at *6-7 (S.D. Cal. July 30, 2012), the court recognized that “[t]he attorney-client privilege under California law is outlined in § 954 of the California Evidence Code.” In some states, things are even more complicated. For instance, in Tennessee, “certain attorney client communications are made confidential under three different sources of state law: statute, common law, and rules promulgated by the Tennessee Supreme Court. Tennessean v. Tenn. Dep’t of Pers., No. M2005-02578-COA-R3-CV, 2007 Tenn. App. LEXIS 267, at *16 (Tenn. Ct. App. Apr. 27, 2007).
Once lawyers determine which jurisdiction’s privilege law applies, they must then correctly identify the source of that law.