America’s legal system generally encourages the full disclosure of all relevant evidence to all parties in a court proceeding. The underlying assumption is, if all parties have access to the same information and roughly equal ability to present their cases, the Court can arrive at a well-informed and just result.
A “privilege”, when used in the context of laws of evidence, are one roadblock to a party’s ability to access information. These privileges have been created through tradition and court rulings (i.e., common law) and by legislative bodies through statutes. Examples of privileges found in Tennessee and many other states are the spousal privilege, which can prohibit one spouse from testifying against the other in court, the clergy-penitent privilege and the psychotherapist-patient privilege. These and other privileges can be found in the Advisory Commission Comment to Tennessee Rule of Evidence 501.
The attorney-client privilege is one of the oldest privileges and is a product of both common law and statute (T.C.A. § 23-3-105). The privilege exists to encourage both the giving of advice from the lawyer and the giving of information to the lawyer by the client. Upjohn Co. v. U.S., 449 U.S. 383, 390 (1981). “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.” Id.at 389. Thus, an opponent will almost never be able to demand disclosure of communications covered by this privilege.
Privileges can be subject to exceptions, for example, when the good of society substantially outweighs the underlying need for the privilege. Tennessee’s Rules of Professional Conduct allow a lawyer to disclose privileged conversations if necessary to prevent a crime or injury and other limited instances. Sup. Ct. Rule 8, RPC 1.6.
A client may also lose the protection of the attorney-client privilege through waiver and, in the process, lower the chance of prevailing in a case. A waiver occurs when words or conduct show the client is not relying on the privilege. A divorcing wife learned this lesson the hard way in Pagliara v. Pagliara, 614 S.W.3d 85 (Tenn. Ct. App. 2020). In this case, the husband knew the wife had been having discussions with her attorneys while a friend was in the room. Husband sought disclosure of communications about the possibility criminal charges between wife and her attorneys. One of the attorneys purportedly stated that pressing criminal charges would give wife more leverage in the divorce. The trial court ruled wife had to disclose these discussions because she waived the attorney-client privilege by virtue of having her friend present during the discussions. Both attorneys she consulted with had warned her that communications with the friend present would not be privileged. Wife claimed that some discussions with the attorneys took place without the friend present but could not identify specific discussions.
Listen to your attorney when you are asked to take steps to protect you and the strength of your case. This advice comes from experience and knowing what can happen if it is not followed.