Attorney Client Privilege

Utah Rule of Evidence 504 establishes a privilege for confidential communications “made for the purpose of facilitating the rendition of professional legal services to the client…” The Attorney Client Privilege is intended to protect “information given by a client to an attorney that is “necessary to obtain informed legal advice—which might not have been made absent the privilege.” S. Utah Wilderness All. v. Automated Geographic Reference Ctr., Div. of Info. Tech., 2008 UT 88, ¶ 33, 200 P.3d 643, 654.  The communication must be confidential, not disclosed to those outside the employer’s control group. (Id.) Courts look to three factors to determine whether the Attorney Client Privilege may be invoked: (1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice. (Id.)

Attorney Client Privilege may be waived. See e.g. Harding v. Dana Transp., Inc., 914 F. Supp. 1084, 1096 (D. N.J. 1996) (holding that use of an attorney’s investigation of sexual harassment allegations as a defense resulted in waiver of attorney-client privilege with respect to content of attorney’s investigation.); Terry v. Bacon, 2011 UT App 432, ¶ 15, 269 P.3d 188, 193 (“when a party places privileged matters at issue in the litigation that party implicitly consents to disclosure of those matters”  (internal quotations omitted)).

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