the client (1) between himself and his lawyer (or their agents), (2) between his

lawyer and the lawyer’s representative, (3) by him or his lawyer to a lawyer
representing another in a matter of common interest, or (4) between
representatives of the client or between the client and a representative of the
client, or (5) between lawyers representing the client.”
■ Three requirements: party identities, purpose, and made in
confidentiality.
● Courts use the primary purpose test to evaluate whether
communication with multiple or overlapping purposes is privileged
or not.
■ Source of information must come from the above parties
■ Survives after death in most jx
■ For institutional clients, communications made by the company’s
constituents to its inside and outside counsel are considered privileged.
There are two tests used to decide who constitutes and constituent
● Control test: communications only made by controlling officers are
privileged
● Subject matter test: look at the subject and purpose of the
communication
○ Confidential: derived from agency and fiduciary laws as well as the rules.
■ Rule 1.6 describes categories of information relating to representation that
may not be revealed unless it falls into three exceptions
● Cannot use current climates info to their disadvantage unless
exception
● May not reveal information of a former client unless exception
● May not use such information about a former client to their
disadvantage unless exception or if the information is generally
known
■ Source may not necessarily be the client or his agents (as described in rule
503)
● I.e. all privileged information is confidential, but not all
confidential information is privileged because it may come from a
source other than the client and his agents.
■ Survives after death in the model rules
■ If client is institutional, then you owe that duty to the institution, not its
persons unless you are also representing the persons
○ So why have privileged information?
■ A court can require disclosure of confidential information under the threat
of being held in contempt.