Multistate Professional Responsibility Examination (MPRE)Client ConfidentialityEasy
A lawyer represents a client in a contentious business litigation. The opposing counsel sends a discovery request seeking 'all communications between the client and any of its former employees regarding the subject matter of this litigation.' The client had previously consulted with a former employee, who is not a lawyer, regarding some technical aspects of the business, and these communications contain sensitive business information, but no legal advice. Is this communication protected by the attorney-client privilege?
- ANo, because the communication was not between the client and their attorney.
- BYes, if the former employee was acting as an agent of the client at the time of the communication.
- CYes, because the communication contains sensitive business information relevant to the litigation.
- DNo, because the communication does not involve a current employee.
Show answer & explanationAnswer & explanation
Correct answer: A. No, because the communication was not between the client and their attorney.
The attorney-client privilege protects confidential communications between a client and their attorney (or their agents) for the purpose of obtaining or providing legal advice. Communications with a non-lawyer former employee, not acting as an agent of the attorney for legal advice, are generally not privileged.
Why the other options are wrong
- B. While communications with agents of the client can be privileged, the prompt states the former employee is 'not a lawyer' and there's no indication they were acting as an agent to facilitate legal advice.
- C. Sensitive business information alone does not confer attorney-client privilege; the communication must be for legal advice.
- D. The status as a former employee is less critical than the lack of attorney involvement and purpose of legal advice.
Attorney-Client Privilege Scope
The attorney-client privilege protects confidential communications between a client and their attorney for the purpose of seeking or rendering legal advice.
- Applies to communications, not underlying facts.
- Must be for the purpose of obtaining or providing legal advice.
- Confidentiality is key; presence of third parties can waive it.
Memory trick: Only talk to your lawyer for legal advice, and it's private.