Attorney/Client Privilege

In general

• Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications:

(1) Attorneys, as to confidential communications made to them in the course of their professional business, and as to advice given in such cases.

IC 34-46-3-1

• The attorney-client privilege allows a client to prevent any person's disclosure of confidential communications made by the client to procure legal advice or legal services from an attorney. The privilege exists to allow clients to disclose all pertinent matters to their attorneys without fear of revelation, so attorneys might be fully advised as they render legal service; accordingly, the law generally precludes disclosure of such communications unless the client consents.

IC 34-46-3-1(1)

See Colman v. Heidenreich, 381 N.E.2d 866, 868 (Ind. 1978)

• The "attorney-client privilege" is the oldest of the privileges for confidential communications known to the common law; its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.

Skinner v. State, 920 N.E.2d 263 (Ind. Ct. App. 2010)

• The attorney-client privilege belongs to the client and this privilege of the communication between attorney and client may be waived by the client.

In re Wood, 358 N.E.2d 128 (Ind. 1976)

IC 34-46-3-1 protects against judicially compelled disclosure of confidential information made to an attorney for the purpose of seeking legal advice. Brown v. Katz, 868 N.E.2d 1159, 1166 (Ind. Ct. App. 2007). The information remains privileged until the client consents to the disclosure, and can only be waived by conduct attributable to the client. Id. Waiver by the client can occur either explicitly or by implication. Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir.1987) (applying Indiana law). “Implicit disclosure can occur when ... a holder relies on a legal claim or defense, the truthful resolution of which will require examining the confidential communication.” Id. Such implicit waiver is considered an “at issue” waiver.

Sann v. Mastrian, 280 F.R.D. 437, 439 (S.D. Ind. 2011)

• The rule is “that when an attorney is consulted on business within the scope of his profession, the communications on the subject between him and his client should be treated as strictly confidential.” . . . As long as the communication is within this scope, it is of no moment to the privilege's application that there is no pendency or expectation of litigation . . . . Neither is it of any moment that no fee has been paid.

Colman v. Heidenreich, 381 N.E.2d 866 (Ind. 1978)

• Communications to an attorney acting as a mere scrivener, such as for preparation of a deed, are not for the purpose of securing legal advice and hence are not privileged.

Conklin v. Dougherty, 89 N.E. 893, 894 (Ind. 1909)

• Communications made after the professional relationships termination are not privileged.

Brewer v. State, 449 N.E.2d 1091, 1093 (Ind. 1983)

• Of course, not every communication between an attorney and a client is a “confidential communication” and entitled to a reasonable expectation of confidentiality. For example, as a general rule information regarding a client's attorney's fees is not protected by the attorney-client privilege because the payment of fees is not considered a confidential communication between attorney and client. A client's identity is not usually considered privileged information.

Corll v. Edward D. Jones & Co., 646 N.E.2d 721, 725 (Ind. Ct. App.1995) (citations omitted) [This excerpt lists the exceptions aside from the crime-fraud exception, which is discussed below.]

Third persons or parties

• The client must intend the communication to be confidential for the attorney-client privilege to apply. A communication made to or in the presence of another person is not privileged.

See Bassett v. State, 895 N.E.2d 1201 (Ind. 2008) [This case discusses general case law regarding confidentiality.]

• However, if the other person is an agent of the attorney or the client, then the privilege remains intact.

See Mayberry v. State, 670 N.E.2d 1262 (Ind. 1996)

• Because some of the questions asked of Cotner pertained to the creation of a document that would have been prepared for Owens' signature in his individual capacity, the communications regarding the substance of that document are not privileged. We agree. Under Indiana law, statements made by a client to his attorney which are intended to be communicated to a third party are not confidential.

Owens v. Best Beers of Bloomington, Inc., 648 N.E.2d 699 (Ind. Ct. App. 1995)

• While there we noted the difference between expectations about communications and expectations about documents, we still emphasized that information imparted to counsel without any expectation of confidentiality is not privileged.

United States v. White, 950 F.2d 426 (7th Cir. 1991)

• [C]ommunications intended by the client to be made public are not considered privileged because there is no reasonable expectation of confidentiality surrounding such information.

Lahr v. State, 731 N.E.2d 479, 482 (Ind. Ct. App. 2000)

Crime or fraud

• The attorney-client privilege does not protect communications intended to perpetrate or further a contemplated future crime or fraud.

See Lahr v. State, 731 N.E.2d 479 (Ind. Ct. App. 2000)

• [Two part test to determine if crime-fraud exception applies] First, to defeat the privilege, the moving party must make a prima facie showing that a sufficiently serious crime or fraud occurred, and second, must then establish some relationship between the communication at issue and the prima facie violation. In order for the moving party to satisfy the prima facie showing, the evidence presented must be such that “ ‘a prudent person [would] have a reasonable basis to suspect the perpetration of a crime or fraud.’

Lahr v. State, 731 N.E.2d 479, 483 (Ind. Ct. App. 2000)

Intentional disclosure; Scope of waiver

• When a disclosure is made in a court proceeding and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.

Evid. R. 502(a)

• Where the client testifies as to a specific communication or offers his attorney's testimony as to that communication, he thereby waives the privilege against disclosure of the whole of the communication.

Whitehead v. State, 500 N.E.2d 149 (Ind. 1986)

Inadvertent disclosure

• When made in a court proceeding, a disclosure does not operate as a waiver if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.

Evid. R. 502(b)

Controlling effect of party agreement

• An agreement on the effect of disclosure in a proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

Evid. R. 502(c)

Controlling effect of court order

• If a court incorporates into a court order an agreement between or among parties on the effect of disclosure in a proceeding, a disclosure that, pursuant to the order, does not constitute a waiver in connection with the proceeding in which the order is entered is also not a waiver in any other court proceeding.

Evid. R. 502(d)

Attorney/client privilege and prosecuting attorneys

[In 1974 Attorney represented Defendant in a criminal case. 16 years later, in 1990, the same attorney is now a prosecutor and is prosecuting the same Defendant for murder. Defendant argues that the attorney should have been disqualified from the Murder prosecution because the two cases were similar enough that the Attorney could have used a modus operandi theory against Defendant in the murder trial. Appeals court rules that prosecutor did not need to be disqualified for 2 reasons]


The Meyers standard, it will be recalled, is that if by reason of his 1974 representation of Broshears, Long acquired a knowledge of facts upon which the 1990 attempted murder prosecution was predicated, or acquired a knowledge of facts which were closely interwoven with the attempted murder prosecution, Long should have been disqualified.

Broshears v. State, 604 N.E.2d 639, 642 (Ind. Ct. App. 1992), decision clarified on denial of reh'g, 609 N.E.2d 1 (Ind. Ct. App. 1993), overruled on other grounds, Seay v. State, 698 N.E.2d 732 (Ind. 1998)

• [First, under the Meyers standard,] [a] special prosecutor is necessary only when the accused can demonstrate that, by reason of his former confidential relationship with the prosecutor, the prosecutor has acquired special knowledge of the facts being litigated, or facts which are closely associated therewith. . . [Under these facts] Although [Attorney] may have originally learned of [Defendant’s] proclivity to shoot people from his professional relationship with [Defendant], the 1974 facts [Defendant] now claims could give rise to a modus operandi theory necessarily lost their “special” or “confidential” status when [Defendant], through his statement to the police, publicly admitted them.

Broshears v. State, 604 N.E.2d 639, 642 (Ind. Ct. App. 1992), decision clarified on denial of reh'g, 609 N.E.2d 1 (Ind. Ct. App. 1993), overruled on other grounds, Seay v. State, 698 N.E.2d 732 (Ind. 1998)

• [Second,] it is plain the 1990 attempted murder prosecution was not predicated on any facts Long may have gleaned from his 1974 representation of Broshears. Instead, the 1990 prosecution was based on an entirely new set of facts having nothing to do with the previous incident.

Broshears v. State, 604 N.E.2d 639, 642 (Ind. Ct. App. 1992), decision clarified on denial of reh'g, 609 N.E.2d 1 (Ind. Ct. App. 1993), overruled on other grounds, Seay v. State, 698 N.E.2d 732 (Ind. 1998)

• The prosecutor acts as attorney and receives the communication in that capacity. Public policy requires that a person in making communications to a prosecuting attorney, relative to criminals or persons suspected of being guilty of crime, should be at liberty to make a full statement to him without fear of disclosure.

Oliver v. Pate, 43 Ind. 132, 141 (Ind. 1873)