Intro to the Federal Rules of Evidence - 20

D. ATTORNEY-CLIENT PRIVILEGE
A client has right not to disclose and the right to prevent his lawyer from disclosing any confidential communication between the two of them relating to the professional relationship.

1. Client as Holder
Only the client has the right to invoke and waiver the privilege. The attorney may, however claim the privilege on behalf of the client.

2. Duration of privilege outlives duration of attorney-client relationship.
In Swindler & Berlin v. United States, 524 U.S. 399 (1998), the court held that the federal attorney-client privilege survives the death of the client.

3. Non-applicability of privilege
a. Legal aid in advice in aid of future wrongdoing
b. Claimants through same deceased client
c. Dispute between attorney and client

4. Attorney’s work product protections
An attorney is protected from being required to disclose certain information that he obtains while preparing for a lawsuit.
a. Qualified protection
Documents prepared in anticipation of litigation may be discovered by the other side under certain circumstances under FRCP 26(b)(3).
b. Absolute immunity for mental impressions, conclusions. Etc.
Some materials are so much the product of the lawyer’s own thinking that they receive what is essentially an absolute work product immunity under FRCP 26(b)(3).