Is the Attorney-Client Privilege Absolute

No. The privilege is broad, highly protective, and among the most important legal protections available. It is not absolute.

The exceptions to the attorney-client privilege are narrow but consequential, and understanding them is as important as understanding the privilege itself. A practitioner who believes that all communications with their attorney are categorically protected from any government access, under any circumstances, has an inaccurate understanding of the protection they actually possess.

The Crime-Fraud Exception

The most significant exception to the attorney-client privilege is the crime-fraud exception. The privilege does not protect communications made in furtherance of a crime or fraud. If the client seeks the attorney’s advice for the purpose of planning or committing a crime, or if the communication is itself part of the criminal activity, the privilege does not apply.

In the opioid fraud context, the crime-fraud exception is most likely to be invoked where the practitioner sought counsel’s advice for the purpose of concealing ongoing diversion, structuring document destruction, or coordinating with witnesses in a manner designed to obstruct the investigation. A communication with an attorney about how to destroy records after a subpoena has been received, or about how to alter medical records to make them appear more compliant than they are, is not a privileged communication. It is evidence of a crime.

The crime-fraud exception does not require a criminal conviction as a predicate. The government may seek to invoke the exception by demonstrating to the court, through a showing of evidence independent of the privileged communications, that there is a reasonable basis to believe that the attorney-client relationship was used in furtherance of criminal activity. The court may then review the communications in camera to determine whether the exception applies.

Waiver Through Disclosure

The privilege is waived when a privileged communication is disclosed to a person outside the attorney-client relationship without necessity. The practitioner who shares the substance of a communication with their attorney with a family member, a colleague, or anyone other than another attorney in the same representation has waived the privilege with respect to the subject matter disclosed.

Waiver can also occur through conduct rather than explicit disclosure. A practitioner who relies on advice of counsel as a defense to a charge may be required to disclose the communications underlying that advice. By asserting the advice of counsel defense, the practitioner waives the privilege with respect to the communications relevant to the defense. The decision to assert the advice of counsel defense should be made with the understanding of this waiver consequence.

The Joint Defense Agreement Limitation

Practitioners who share information with co-defendants or with co-defendants’ counsel under a joint defense agreement must understand that the privilege’s protection within the joint defense relationship is conditioned on the relationship’s continuation. If a co-defendant subsequently cooperates with the government and discloses communications made during the joint defense period, the privilege may not protect those communications from the government’s access. The joint defense agreement creates a shared privilege that each party can waive with respect to their own communications.

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The attorney-client privilege is one of the most powerful protections available in a federal investigation. Its limitations are real but narrow, and they generally arise from specific circumstances that counsel experienced in federal defense will identify and manage. The practitioner who understands both the privilege’s scope and its limitations is the practitioner who can use it most effectively.

What the Privilege Does Not Cover

The privilege covers communications between attorney and client made for the purpose of legal advice. It does not cover the underlying facts. A practitioner cannot claim privilege over the prescribing records themselves, the medical records in patient files, or the financial transactions that occurred, simply because those records were subsequently discussed with counsel. The privilege protects the communication. It does not protect the facts the communication describes. The government can subpoena the records; it cannot subpoena the conversation about them.