ATTORNEY/CLIENT CONFIDENCE
THE ATTORNEY/CLIENT PRIVILEGE OF CONFIDENTIALITY EXISTS BUT THERE ISN'T ANY SIMILAR ACCOUNTANT/CLIENT PRIVILEGE IN IRS CASES.

The attorney-client privilege of confidentiality exists for the purpose of fostering full and open disclosure between a client and her lawyer. So, generally what a client says to her lawyer cannot be secured by another party without her prior approval. Therefore, the privilege is the client’s, not the lawyer’s and only the client can waive it.

The attorney-client privilege of confidentiality is a fundamental right. It shields the communications between the attorney and client from the reach of others but it does not include the underlying transactions about which the attorney was consulted.

The privilege can be waived by the client only through an intentional and voluntary decision to relinquish or abandon it. In other words, if a client voluntarily discloses information about a matter that otherwise would be protected by the privilege of attorney/client confidentiality then the privilege is waived.

Note that a client does not waive the privilege by speaking about the underlying facts of the matter about which she consulted with her lawyer. These facts are not protected by the privilege.

But as to those matters that are protected, a client doesn’t have to acknowledge or understand every detail and every ramification, positive or negative, that relates to her waiving the privilege. The test is merely whether the disclosure was voluntarily made.

So, should the client speak about the contents of a privileged communication she had with her attorney, she has waived the privilege regardless of the severity of the results it may produce.

But note, generally a limited disclosure of what would be protected by the privilege waives the privilege only as to those communications relating to that specific subject and does not result in a blanket waiver of the privilege as to communications on other subjects with the same attorney, or even as to communications on the same subject.

A voluntary waiver can be made in any setting. It doesn't have to be in a court, or where the client is "under oath". For instance, if a client leaves her lawyer's office and then meets socially with friends during which time she provides details of her communications with her lawyer, then the privilege will be forever waived. However, the disclosure of a privilege communication in another privileged communication does not constitute a waiver; for example, the client does not waive the attorney-client privilege by telling her psychiatrist about communications with her lawyer.

Nor will a waiver occur if the disclosure was coerced or involuntary. For instance, it has been held that the "implied coercion" that results when government agents ask or demand that a citizen permit them to see certain documents will preclude a finding that disclosure was voluntary, and hence not waive the privilege. Additionally, the inadvertent disclosure of a privileged document may not operate as a waiver. For example, the accidental production of records during discovery proceedings may not be deemed a waiver.

Interestingly, if a witness in a trial or hearing claims the attorney-client privilege and the court erroneously denies the claim, the witness's acquiescence in the court's ruling does not constitute a waiver of the privilege in any subsequent proceeding. This exception is recognized because the only way a witness can obtain appellate review when a claim of privilege is erroneously denied is to be held in contempt, and such fortitude cannot be expected of most witnesses.