Attorney-Client Privilege: Overview (Federal)

by Thomas E. Spahn, McGuireWoods LLP with Practical Law Litigation

A Practice Note outlining the legal framework governing the attorney-client privilege under federal law. This Note explains the federal common law standard and highlights that courts construe the privilege narrowly, requiring each communication to independently meet the privilege test. This Note then examines the critical choice of law analysis, discussing when federal common law, state law, or foreign law governs privilege claims. It explains how the basis for federal jurisdiction, such as a federal question or diversity, dictates the applicable rules. This Note also explores the complexities of applying foreign law, which can have significant implications for communications involving in-house counsel. Additionally, this Note defines the types of communications the privilege protects and discusses the requirements for forming an attorney-client relationship. Finally, it addresses the duration of the privilege for both individual and corporate clients.