This article will explain the types of information protected by attorney-client privilege in Illinois. We will answer the question, “what is attorney-client privilege?” and explain both privileged communications between an attorney and client and privileged attorney work-product.
What is Attorney-Client Privilege?
In litigation, before trial, the parties will engage in written discovery and depositions to gather information from the other parties to use as evidence at trial. Certain types of information are protected by privileges, which means that the information is not required to be disclosed to other parties. One of these privileges is the attorney-client privilege.
Two types of information are covered by attorney-client privilege: (1) privileged communications between attorney-client privilege; and (2) attorney product.
If the information requested in discovery meets either definition, the party from whom it is requested can assert the privilege and refuse to disclose the information.
Privileged Communications Between Attorney and Client
The attorney-client privilege extends to confidential communications between an attorney and their client. In order for a communication to meet this definition, the following must be true:
- An attorney-client relationship must exist: this does not necessarily require a written retention agreement, but the client must have communicated confidential information to an attorney while seeking legal advice.
- The information must have been exchanged between the client and attorney in confidence, with the understanding that it was not to be shared with others;
- The communication must have been made to the attorney while they were acting in their legal capacity, meaning the communication was made to obtain legal advice; and
- The communication must remain confidential, meaning that the privilege may be waived if the information is disclosed to third parties.
Privileged Attorney Work Product
Some materials prepared by attorneys in preparation for the trial are protected attorney “work product” covered by the attorney-client privilege. In order to meet the definition of “work product,” the material must meet the following requirements:
- The material must consist of theories, mental impressions, or litigation plans of the party’s attorney--facts are not covered by the work product doctrine; and
- The material must have been prepared for the purpose of litigation or trial.
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