Broadly speaking, the
attorney-client privilege protects communications between a client and an
attorney where the communications are intended to be and remain confidential.
The purpose of the privilege is "to foster the confidence of the
client and enable[] him to communicate without fear in order to seek legal
advice." The breadth of the attorney-client privilege in
Delaware is defined in Delaware Uniform Rule of Evidence 502. Rule 502(b)
provides:
A client has a privilege to refuse to disclose and to prevent any other person
from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client (1)
between the client or the client's representative and the client's lawyer or
the lawyer's representative, (2) between the lawyer and the lawyer's
representative, (3) by the client or the client's representative or the
client's lawyer or a representative of the lawyer to a lawyer or a
representative of a lawyer representing another in a matter of common interest,
(4) between representatives of the client or between the client and a
representative of the client, or (5) among lawyers and their representatives
representing the same client.
Under Delaware law, the burden of proving that a particular communication is
privileged is upon the party asserting the privilege.
[a] Elements of the Attorney-Client
Privilege.
The Delaware Supreme Court has summarized the various elements that generally
must be established for the invocation of the attorney-client privilege under
Rule 502(b), explaining that "the privilege extends to a (1)
communication, (2) that is confidential, (3) that is made for the purpose of
facilitating the rendition of legal services to the client, and (4) that is
between the client and its attorney."5
Another often articulated, yet notably more complex, formulation of the
elements that a party must demonstrate to invoke the attorney-client privilege
was first enunciated by the United States District Court for the District of
Massachusetts, and has been cited on numerous occasions by the Delaware
courts:
(1) the asserted holder of the privilege is or sought to become a client; (2)
the person to whom the communication was made (a) is a member of the bar of a
court, or his subordinate and (b) in connection with this communication is
acting as a lawyer; (3) the communication relates to a fact of which the
attorney was informed (a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an opinion of law or (ii)
legal services or (iii) assistance in some legal proceeding, and not (d) for
the purpose of committing a crime or a tort; and (4) the privilege has been (a)
claimed and (b) not waived by the client.
Regardless of the formulation used, however, the basic elements of the
attorney-client privilege have been fleshed out considerably by judicial
decisions and deserve additional attention. [footnotes omitted]
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This excerpt was taken from Corporate and
Commercial Practice in the Delaware Court of Chancery (by Michael Pittenger
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