What is Attorney Client Privilege?

What Does Attorney-Client Privilege Protect in Illinois?

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article we 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, prior to trial the parties will engage in written discovery and depositions in order 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.

There are two types of information 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 refused to disclose the information.

Privileged Communications Between Attorney and Client

Attorney Client Privlege

The attorney-client privilege extends to confidential communications between an attorney and his or her 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 he or she was acting in his or her legal capacity, meaning the communication was made for the purpose of obtaining legal advice; and
  • The communication must remain confidential, meaning that if the information is disclosed to third parties the privilege may be waived.

Privileged Attorney Work Product

Some materials prepared by attorneys in preparation for trial are protected attorney “work product” covered by 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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