attorney-client privilege in Tennessee

2022The parties each acknowledge that for what may be referred to as “‘at issue’ waiver,” also known as “implied waiver” of the attorney-client privilege, see Culbertson II, 455 S.W.3d at 133 , the applicable test in Tennessee was set forth by the Court of Criminal Appeals in Bryan v. State, 848 S.W.2d 72, 81 (Tenn. Crim. App. 1992) (citing with approval Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.

2022App. P. 11 application filed); Bryan v. State, 848 S.W.2d at 80 . - 20 - The attorney-client privilege “belongs” to the client.

2025See, e.g., Buford, 216 S.W.3d at 326 (“If a client divulges the communications he seeks to protect, then he has waived the attorney-client privilege with respect to the reported communications . . . .”); Arthur Anderson, 816 S.W.2d at 328-29 (finding a client waived the accountant-client privilege by executing a sworn and notarized waiver); Thompson, 768 S.W.2d at 239 (finding defendant waived the psychologist-patient privilege after eliciting testimony from psychologist); Culbertson, 455 S.W.3d at 150 (stating if a client’s “disclosure . . . of privileged information . . . is voluntary, it mu

2023As this Court has previously explained, decisions regarding the application of the attorney-client privilege and the work product doctrine “address themselves to a trial court’s discretion.” See Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).

2025See, e.g., Buford, 216 S.W.3d at 326 (“If a client divulges the communications he seeks to protect, then he has waived the attorney-client privilege with respect to the reported communications . . . .”); Arthur Anderson, 816 S.W.2d at 328-29 (finding a client waived the accountant-client privilege by executing a sworn and notarized waiver); Thompson, 768 S.W.2d at 239 (finding defendant waived the psychologist-patient privilege after eliciting testimony from psychologist); Culbertson, 455 S.W.3d at 150 (stating if a client’s “disclosure . . . of privileged information . . . is voluntary, it mu

2020The Trial Court entered an order that same day finding as follows concerning the application of attorney-client privilege: “To be protected by the attorney-client privilege, the communications must involve the subject matter of the representation.” Boyd v. Comdata Network, Inc., 88 S.W.3d 203 (Tenn. Ct. App. 2002); see also, Jackson v. State, 293 S.W. 539 (Tenn. 1926) (where client consulted attorney about a legal matter and made remarks about another matter, separate and distinct from such legal matter, those remarks were not privileged) and State v. Buford, 216 S.W.3d 323 (Tenn. 2007) (if a

2022Bryan, 848 S.W.2d at 81 (citing Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.

2022The parties each acknowledge that for what may be referred to as “‘at issue’ waiver,” also known as “implied waiver” of the attorney-client privilege, see Culbertson II, 455 S.W.3d at 133 , the applicable test in Tennessee was set forth by the Court of Criminal Appeals in Bryan v. State, 848 S.W.2d 72, 81 (Tenn. Crim. App. 1992) (citing with approval Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.

2020Ass’n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984). “‘[W]hether the attorney-client privilege applies to any particular communication is necessarily question, topic and case specific.’” Culbertson v. Culbertson, 393 S.W.3d 678, 684 (Tenn. Ct. App. 2012) (quoting Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim.

2017This Court had occasion to discuss waiver of the attorney-client privilege in Culbertson v. Culbertson [Culbertson I], 393 S.W.3d 678 (Tenn. Ct. App. 2012) and Culbertson v. Culbertson [Culbertson II], 455 S.W.3d 107 (Tenn. Ct. App. 2014), cases in which the psychologist-client privilege was at issue.10 In Culbertson I, the Wife in a divorce proceeding issued subpoenas duces tecum, and three notices to take depositions duces tecum, to three of Husband’s psychologists.

2025See, e.g., Buford, 216 S.W.3d at 326 (“If a client divulges the communications he seeks to protect, then he has waived the attorney-client privilege with respect to the reported communications . . . .”); Arthur Anderson, 816 S.W.2d at 328-29 (finding a client waived the accountant-client privilege by executing a sworn and notarized waiver); Thompson, 768 S.W.2d at 239 (finding defendant waived the psychologist-patient privilege after eliciting testimony from psychologist); Culbertson, 455 S.W.3d at 150 (stating if a client’s “disclosure . . . of privileged information . . . is voluntary, it mu

2022The parties each acknowledge that for what may be referred to as “‘at issue’ waiver,” also known as “implied waiver” of the attorney-client privilege, see Culbertson II, 455 S.W.3d at 133 , the applicable test in Tennessee was set forth by the Court of Criminal Appeals in Bryan v. State, 848 S.W.2d 72, 81 (Tenn. Crim. App. 1992) (citing with approval Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.

2002In Swidler & Berlin, the Supreme Court, finding that the purposes underlying the attorney- client privilege endure after the death of the client, held that the privilege survives even after the client’s death. 524 U.S. at 405-06 .

2001Appellants direct us to the case of Swidler & Berlin v. U.S., 524 U.S. 399 , 118 S.Ct. 2081 , 141 L.Ed.2d 379 (1998), in which the United States Supreme Court held that the attorney-client privilege survives the death of the client.

2022We review a trial court’s decisions on the attorney-client privilege “using the abuse of discretion standard.” Pagliara, 614 S.W.3d at 89.

2022We review a trial court’s decisions on the attorney-client privilege “using the abuse of discretion standard.” Pagliara, 614 S.W.3d at 89.

2023(Citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)); accord In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982); S.T.

1999(Citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982)); accord In re Sealed Case, 676 F.2d 793, 818 (D.C.Cir.1982); S.T.

2021“A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

2019Boyd v. Comdata Network, Inc. , 88 S.W.3d 203 , 211 (Tenn. Ct. App. 2002) (citing In re Grand Jury Proceedings , 219 F.3d 175 , 182 (2d Cir. 2000) ; Frontier Refining, Inc. v. Gorman-Rupp Co. , 136 F.3d 695 , 699 (10th Cir. 1998) ); see also Lee Med., Inc. v. Beecher , 312 S.W.3d 515 , 524 (Tenn. 2010) (citing Doe 1 ex rel.

2025See, e.g., Buford, 216 S.W.3d at 326 (“If a client divulges the communications he seeks to protect, then he has waived the attorney-client privilege with respect to the reported communications . . . .”); Arthur Anderson, 816 S.W.2d at 328-29 (finding a client waived the accountant-client privilege by executing a sworn and notarized waiver); Thompson, 768 S.W.2d at 239 (finding defendant waived the psychologist-patient privilege after eliciting testimony from psychologist); Culbertson, 455 S.W.3d at 150 (stating if a client’s “disclosure . . . of privileged information . . . is voluntary, it mu

2012Id. at 616 (citing Bryan v. State, 848 S.W.2d 72, 80 (Tenn.Crim.App.1992)). “[W]hether the attorney-client privilege applies to any particular communication is necessarily question, topic and case specific.” Bryan, 848 S.W.2d at 80 .

2023The court determined that the Letter was not protected by the attorney-client privilege because such privilege only protected (1) communications from client to lawyer and (2) communications from lawyer to client containing legal advice “if the advice reveals client confidence or otherwise privileged information.” The court further noted that the privilege did not extend to “communications from an attorney to a client when they contain advice solely based upon public information rather than confidential information,” citing Hazlett v. Bryant, 241 S.W.2d 121, 124 (Tenn. 1951).

2020The reason for the prohibition of disclosure ceases when the client does not appear to have been desirous of secrecy.” Hazlett v. Bryant, 241 S.W.2d 121 (Tenn. 1951).

2020Ass’n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984). “‘[W]hether the attorney-client privilege applies to any particular communication is necessarily question, topic and case specific.’” Culbertson v. Culbertson, 393 S.W.3d 678, 684 (Tenn. Ct. App. 2012) (quoting Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim.

1991They contend that the attorney-client exception recognized in Smith County Education Association v. Anderson, 676 S.W.2d 328 (Tenn.1984), applies in this situation because, although there had been no charges preferred against Van Hooser as of August 16, 1983, there was a pending controversy that was likely to result in litigation between the school district and Van Hooser.

2019The Court concluded that “[c]onsistent with the underlying purposes of the attorney-client privilege, these communications must be protected against compelled disclosure.” Id. at 395 , 101 S.Ct. 677 .

2019The Court concluded that “[c]onsistent with the underlying purposes of the attorney-client privilege, these communications must be protected against compelled disclosure.” Id. at 395 , 101 S.Ct. 677 .

2019Boyd v. Comdata Network, Inc. , 88 S.W.3d 203 , 211 (Tenn. Ct. App. 2002) (citing In re Grand Jury Proceedings , 219 F.3d 175 , 182 (2d Cir. 2000) ; Frontier Refining, Inc. v. Gorman-Rupp Co. , 136 F.3d 695 , 699 (10th Cir. 1998) ); see also Lee Med., Inc. v. Beecher , 312 S.W.3d 515 , 524 (Tenn. 2010) (citing Doe 1 ex rel.

2002In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir.2000); Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir.1998).

2019Boyd v. Comdata Network, Inc. , 88 S.W.3d 203 , 211 (Tenn. Ct. App. 2002) (citing In re Grand Jury Proceedings , 219 F.3d 175 , 182 (2d Cir. 2000) ; Frontier Refining, Inc. v. Gorman-Rupp Co. , 136 F.3d 695 , 699 (10th Cir. 1998) ); see also Lee Med., Inc. v. Beecher , 312 S.W.3d 515 , 524 (Tenn. 2010) (citing Doe 1 ex rel.

2002In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir.2000); Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir.1998).

2025See, e.g., Buford, 216 S.W.3d at 326 (“If a client divulges the communications he seeks to protect, then he has waived the attorney-client privilege with respect to the reported communications . . . .”); Arthur Anderson, 816 S.W.2d at 328-29 (finding a client waived the accountant-client privilege by executing a sworn and notarized waiver); Thompson, 768 S.W.2d at 239 (finding defendant waived the psychologist-patient privilege after eliciting testimony from psychologist); Culbertson, 455 S.W.3d at 150 (stating if a client’s “disclosure . . . of privileged information . . . is voluntary, it mu

2025See id.

2021As our Supreme Court has elucidated, “[w]e review a trial court’s rulings on the application of the attorney-client privilege under an abuse of discretion standard.” Dialysis Clinic, Inc. v. Medley, 567 S.W.3d 314, 317-18 (Tenn. 2019).

2021The question presented in this matter, whether a client’s identifying information is protected by attorney-client privilege, was addressed by our sister Court of Criminal Appeals in State v. Bobo, 724 S.W.2d 760, 765-66 (Tenn. Crim. App. 1981), wherein an attorney in possession of exculpatory information regarding the defendant was called to testify concerning the identity of his client, who had provided the information.

2020The Trial Court entered an order that same day finding as follows concerning the application of attorney-client privilege: “To be protected by the attorney-client privilege, the communications must involve the subject matter of the representation.” Boyd v. Comdata Network, Inc., 88 S.W.3d 203 (Tenn. Ct. App. 2002); see also, Jackson v. State, 293 S.W. 539 (Tenn. 1926) (where client consulted attorney about a legal matter and made remarks about another matter, separate and distinct from such legal matter, those remarks were not privileged) and State v. Buford, 216 S.W.3d 323 (Tenn. 2007) (if a