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The Ins and Outs of the Attorney-Client Privilege for In-House Counsel

By April 19, 2018 No Comments

I. Source of the Privilege

A. Common Law:

1. “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
2. Fed. R. Evid. 501: “The common law – as interpreted by United States courts in the light of reason and experience – governs a claim of privilege . . . .”

B. Wisconsin Stat. § 905.03(2):

1. GENERAL RULE OF PRIVILEGE. 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:

(a) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative;
(b) between the client’s lawyer and the lawyer’s representative;
(c) by the client or the client’s lawyer to a lawyer representing another in a matter of common interest;
(d) between representatives of the client or between the client and a representative of the client;
(e) between lawyers representing the client.

2. Federal Courts:

(a) Will apply state law in diversity cases
(b) Will apply federal common law in all others. See Fed. R. Evid. 501.

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