NCJ Number
84758
Date Published
1981
Length
26 pages
Annotation
Problems presented by the assertion of either the attorney-client privilege or work product doctrine in the early stages of criminal prosecutions are examined.
Abstract
The following key principles should be remembered when dealing with attorney-client problems: (1) the burden of establishing the existence of the attorney-client privilege is on the party asserting it; (2) once the privilege is established, however, the burden is on the party seeking to breach the privilege to justifiy its need; (3) the privilege can be waived by conduct inconsistent with its assertion; (4) in Federal courts, the attorney-client privilege is governed by the principles of the common law as they may be interpreted by the courts; and (5) the privilege can and should be raised before the grand jury. In Upjohn v. United States, supra, Justice Rehnquist emphasized that the attorney-client privilege 'exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice.' The work product doctrine protects written statements, private memoranda, and personal recollections prepared or formed by the attorney in the course of legal duties. The Government has demonstrated a tendency in the past several years for breaching the attorney-client privilege by asserting the existence of a common scheme or fraud presumably involving counsel, by subpoenaing evidentiary material directly from defense lawyers, by using Rule 16 (b) as a pretext to pry into attorney-client conferences, or by issuing grand jury subpoenas to trial counsel after a case has been concluded. Defense counsel should not yield too quickly to Government pressure and breach clients' confidences. The references are provided.