Advice and the Privilege

Advice and the Privilege

A lawyer cannot advise well on facts the client withholds. Rule 2.1 requires independent professional judgment and candid advice, and it allows the lawyer to draw on moral, economic, social, and political considerations that bear on the client's situation.¹ Each duty presupposes a lawyer who knows what happened, and the client alone decides how much to tell. A client who expects a candid disclosure to reach an adversary has every reason to shade the account, and advice built on a shaded account can be no better than the shading allows. The attorney-client privilege shields confidential communications made to obtain legal advice from compelled disclosure, and it removes that reason to hold back. This section does not rehearse the privilege's elements; it shows why the advisor's role depends on it.

Upjohn Co. v. United States tied the privilege to the advisor's need for facts. The Court said the privilege protects "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."² The first step in resolving any legal problem is to ascertain the factual background and sift the facts for what is legally relevant.³ Sifting is the lawyer's judgment at work, and the client cannot do it in advance: a client who screens facts before speaking has already made the call the lawyer was hired to make. The client therefore has to feel safe telling everything, including details that seem harmless or embarrassing, and confidentiality is what makes that disclosure rational.

For an individual client, the person who supplies the facts and the person who acts on the advice are the same, so the privilege's two protected acts travel together. A corporation pulls them apart, and Upjohn shows why the privilege must cover both. A rule that protected only communications with those who can act on the advice would overlook that the privilege also protects the information flowing to the lawyer.⁴ Such a rule would also weaken the advice itself. Advice is frequently more significant to noncontrol group members than to those who officially sanction it, and the control group test makes it harder to convey full and frank legal advice to the employees who put the corporation's policy into effect.⁵ The test thus fails twice. A lawyer who interviews the employees who actually know the facts would find those conversations outside its protection, and the employees who must follow the advice are the hardest to counsel candidly. Facts flow in and advice flows out, and the privilege protects the flow in both directions.

Rule 2.1 lets counsel run past the law into economics and morality, so a single conversation about a deal often mixes legal and non-legal strands.⁶ A privilege confined to the strictly legal sentences would force the client to sort the conversation into compartments before speaking, and it would force the lawyer to divide the counsel the same way, undoing the integration Rule 2.1 invites. The secondary source avoids that result with a presumption. If a lawyer has performed services for a client in the context of a legal practice, as distinguished from a separate business, even if law-related, the presumption should be that the client genuinely was seeking legal advice and that any communications with the attorney are within the privilege.⁷

Two errors follow from misreading these points. The first treats the privilege as covering only the finished advice, or only advice to top management, when Upjohn extends it to the information that enables the advice and to the employees who must act on it. The second treats every contact with a person who happens to be a lawyer as privileged, when the presumption depends on services performed in the context of a legal practice.