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When are communications protected by the Attorney-Client Privilege?

The attorney-client privilege attaches when there are (1) communications between (2) attorney and client related to (3) legal counsel. When communications are subject to the attorney-client privilege, then neither the attorney nor the client may be compelled to testify as to the substance of the communication. Do note that the client is the “holder” of the privilege; it is, therefore, his/hers to waive. The privilege is very strong and even survives death to the extent that an attorney still cannot divulge confidential communications after the client dies.

Although the privilege is robust, it is not unlimited. When such communications are in issue in a professional malpractice/diligence dispute, then they may be divulged. Furthermore, fraudulent/criminal advice is not protected by the privilege.

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