Elements of Privilege

Elements of Privilege

Elements of Privilege

The elements are a communication, made in confidence, between a client and a lawyer or their agents, for the purpose of seeking or providing legal advice, that has not been waived.

The proponent bears the burden of establishing each element.

Alternative Names:

Privilege Elements, Privilege Requirements

Why it Matters?

Each element is a separate point of attack, and the ones that fail most often are confidentiality and legal purpose. A communication copied to a third party outside the privileged circle fails confidentiality; a communication routing business information past a lawyer fails legal purpose. Because the proponent bears the burden, a privilege log entry that does not establish each element is vulnerable without the challenger proving anything affirmatively.

Frequently asked questions

Who bears the burden on privilege?

Who bears the burden on privilege?

The party asserting it, which must establish each element. A log entry failing to do so is vulnerable without affirmative proof from the challenger.

Which elements fail most often?

Which elements fail most often?

Confidentiality, where third parties were copied, and legal purpose, where the communication conveyed business rather than legal content.