![]() CONFIDENTIALITY OF UNDERLYING INFORMATIONĪn ill-conceived line of FOIA cases emanating from the U.S. Limitations on the attorney-client privilege have therefore necessarily been construed narrowly. ![]() Indeed, as the Supreme Court has phrased it, "he 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." Upjohn Co. Such confidential communications are shielded from disclosure in order to encourage full and frank discussion between the client and his legal advisor. Therefore, the privilege "normally extends both to the substance of the client's communication as well as the attorney's advice in response thereto." Matter of Fischel, 557 F.2d 209, 211 (9th Cir. The purpose of the attorney-client privilege is to protect from discovery in civil litigation those "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data, 566 F.2d at 252. See FOIA Update, Fall 1984, at 6 FOIA Update, Summer 1983, at 6. ![]() Similarly, the attorney-client privilege is even broader than the attorney work-product privilege in one respect, in that it protects all confidential communications between client and attorney, not merely those made in anticipation of litigation. as part of decisionmaking process." Mead Data Central, Inc. Although there is often a significant overlap between the attorney-client and deliberative process privileges, the distinction between the two is that "the attorney-client privilege permits nondisclosure of an attorney's opinion or advice in order to protect the secrecy of the underlying facts, while the deliberative process privilege directly protects advice and opinions and does not permit the nondisclosure of underlying facts unless they would indirectly reveal the advice, opinions, and evaluations circulated. For instance, in contrast to the deliberative process privilege, the attorney-client privilege can protect factual information, when those facts are divulged by a client to his attorney. The scope of the attorney-client privilege is in part broader and in part narrower than other major civil discovery privileges traditionally recognized as incorporated into Exemption 5. 19, 26-28 (1983) see also FOIA Update, Fall 1984, at 6 - agency FOIA personnel need to possess a precise understanding of the scope and contours of the attorney-client privilege as it has been applied in the civil discovery context. Particularly now that the Supreme Court has held that the scope of Exemption 5 is coextensive with the scope of each of the civil discovery privileges it incorporates - see United States v. § 552(b)(5), incorporates the attorney-client privilege among other civil discovery privileges. 1003 (1982).Įxemption 5 of the Freedom of Information Act, 5 U.S.C. See generally Note, The Applicability and Scope of the Attorney-Client Privilege in the Executive Branch of the Federal Government, 62 Boston U.L. ![]() 1980) (it is "clear that an agency can be a 'client' and agency lawyers can function as 'attorneys' within the. ![]() Taking note of this fundamental need, the courts have uniformly held that federal agencies may enter into privileged attorney-client relationships with their lawyers. OIP Guidance The Attorney-Client PrivilegeĪlthough it initially may seem peculiar to think of federal agencies as "clients" seeking legal advice, it is certainly true that these entities - no less so than individuals and corporations - require confidential legal advice from their attorneys in order to function effectively. ![]()
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