Unlike the work product doctrine, the attorney-client privilege provides absolute protection if properly created and not waived.
In State v. Lowery, No. COA11-673, 2012 N.C. App. LEXIS 288, at *13 (N.C. Ct. App. Feb. 21, 2012), a criminal defendant argued that two witnesses’ attorney-client privilege claim “should ‘give way,’ to [his] right to question a witness about private conversations with his or her attorney.” The court pointed to the North Carolina Supreme Court’s acknowledgement that the attorney-client privilege “‘is unique among all privileged communications,'” and is “‘beneficial to the public, both in facilitating competent legal advice and ultimately in furthering the ends of justice.'” Id. at *13-14 (citation omitted). The court also noted defendant’s failure to provide any case law suggesting “that the attorney-client privilege should be nullified so that a defendant can question the witness about confidential conversations for the purpose of impeachment.” Id. at *14.
Lawyers should always consider the possible applicability of the attorney-client privilege, because it can offer absolute protection. However, that protection comes with a price – the privilege’s absolute nature makes it difficult to create and very fragile.