This article addresses what is a “communication” for purposes of the attorney-client privilege. It notes that observations, as distinguished from communications, are generally not privileged, but that when observations are a form of confidential communication they are privileged. The article discusses the trend toward a two-way privilege that covers communications from the lawyer to the client as well as from the client to the lawyer.
GW Paper Series
GWU Law School Public Law Research Paper No. 2018-61; GWU Legal Studies Research Paper No. 2018-61
Mueller, Christopher B. and Kirkpatrick, Laird C. and Richter, Liesa, §5.12 Communication (2018). C. Mueller, L. Kirkpatrick, & L. Richter, Evidence §5.12 (6th ed. Wolters Kluwer 2018); GWU Law School Public Law Research Paper No. 2018-61; GWU Legal Studies Research Paper No. 2018-61. Available at SSRN: https://ssrn.com/abstract=3276982