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 Confused with
Related terms
Frequently asked questions
Who bears the burden on privilege?
Which elements fail most often?
