Free Download: The Attorney-Client Privilege in the Delaware Court of Chancery

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 and Donald Wolfe), which has been recognized by Truth on the Market as one of the top ten corporate law works for the practitioner. Subscribers to lexis.com may access the treatise online. Non-subscribers may purchase the treatise from the LexisNexis Store.

Because it is the corporate domicile of choice in the United States, Delaware produces and implements the substantive laws governing internal affairs for most of our nation's corporations - large and small. As a result, most battles concerning the application of those laws are waged in Delaware courts. In Corporate and Commercial Practice in the Delaware Court of Chancery, you'll profit from the singular insight and firsthand experience of two of the court's leading practitioners. You'll quickly find out why the Court of Chancery is to corporate litigation what the Delaware General Corporation Law is to the nation's corporate community. And most important, you'll learn about numerous topics never before explored in such a comprehensive manner.