attorney-client privilege in North Carolina

2026Moreover, “the attorney-client privilege . . . survive[s] the death of the client.” Id. at 323 , 584 S.E.2d at 779 . -7- Yet, the attorney-client privilege is not absolute.

2026Moreover, “the attorney-client privilege . . . survive[s] the death of the client.” Id. at 323 , 584 S.E.2d at 779 . -7- Yet, the attorney-client privilege is not absolute.

2021It is well-established that in North Carolina, the attorney-client privilege applies if: “(1) the relation of the attorney and the client existed at the time the communication was made, (2) the communication was made in confidence, (3) the communication relates to a matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated[,] and (5) the client has not waived the privilege.” State v. Murvin, 304 N.C. 523, 531 (1981); see also Window World of

2019The attorney-client privilege protects communications if: "(1) the relation of attorney and client existed at the time the communication was made, (2) the communication *561 was made in confidence, (3) the communication relates to a matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated and (5) the client has not waived the privilege." *348 Id . at 411, 628 S.E.2d at 462 (quoting State v. Murvin , 304 N.C. 523 , 531, 284 S.E.2d 289 , 294 (

2022For the privilege to apply and thus require the exclusion of relevant evidence, “the relation of attorney and client [must have] existed at the time the [particular] communication was made.” In re Miller, 357 N.C. 316, 335 (2003) (quoting State v. McIntosh, 336 N.C. 517, 523 (1994)). ¶ 31 However, the mere fact that an attorney-client relationship exists does not automatically trigger the attorney-client privilege: the communication sought to be shielded from publication must be confidential.

2022For the privilege to apply and thus require the exclusion of relevant evidence, “the relation of attorney and client [must have] existed at the time the [particular] communication was made.” In re Miller, 357 N.C. 316, 335 (2003) (quoting State v. McIntosh, 336 N.C. 517, 523 (1994)). ¶ 31 However, the mere fact that an attorney-client relationship exists does not automatically trigger the attorney-client privilege: the communication sought to be shielded from publication must be confidential.

2022Co., 257 N.C. 32, 36 (1962) (explaining that if evidence is held to be privileged it is therefore inadmissible). ¶ 30 “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

2022Co., 257 N.C. 32, 36 (1962) (explaining that if evidence is held to be privileged it is therefore inadmissible). ¶ 30 “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

2003Instate v. Tate, 294 N.C. 189 , 239 S.E.2d 821 (1978), our Supreme Court held that the attorney-client privilege which preserves the confidentiality of a normally privileged written communication is deemed to be waived if the holder of that privilege testifies concerning the written communication thereby putting it into evidence before the jury.

2003Instate v. Tate, 294 N.C. 189 , 239 S.E.2d 821 (1978), our Supreme Court held that the attorney-client privilege which preserves the confidentiality of a normally privileged written communication is deemed to be waived if the holder of that privilege testifies concerning the written communication thereby putting it into evidence before the jury.

2020Buckley seeks to protect a number of the Buckley Communications due to work-product immunity. 6 Unlike the attorney-client privilege, “[t]he protection given to matters prepared in anticipation of trial, or ‘work product,’ is not a privilege, but a ‘qualified immunity.’ ” Evans, 142 N.C. App. at 28 , 541 S.E.2d at 788 (quoting Willis v. Power Co., 291 N.C. 19, 35 , 229 S.E.2d 191, 201 (1976)).

2020The North Carolina courts have made clear that, “although the protection given to communications between attorney and client apply equally to in-house counsel, an insurance company and its counsel may not avail themselves of the protection afforded by the attorney-client privilege if the attorney was not acting as a legal advisor when the communication was made.” Id. at 32, 541 S.E.2d at 791 (citations omitted); see also, e.g., Morris v. Scenera Research, LLC, 2011 NCBC LEXIS 34 , at *15 (N.C. Super. Ct. Aug. 26, 2011) (“When the in-house counsel’s legal advice is merely incidental to business

2020Buckley seeks to protect a number of the Buckley Communications due to work-product immunity. 6 Unlike the attorney-client privilege, “[t]he protection given to matters prepared in anticipation of trial, or ‘work product,’ is not a privilege, but a ‘qualified immunity.’ ” Evans, 142 N.C. App. at 28 , 541 S.E.2d at 788 (quoting Willis v. Power Co., 291 N.C. 19, 35 , 229 S.E.2d 191, 201 (1976)).

2020Buckley seeks to protect a number of the Buckley Communications due to work-product immunity. 6 Unlike the attorney-client privilege, “[t]he protection given to matters prepared in anticipation of trial, or ‘work product,’ is not a privilege, but a ‘qualified immunity.’ ” Evans, 142 N.C. App. at 28 , 541 S.E.2d at 788 (quoting Willis v. Power Co., 291 N.C. 19, 35 , 229 S.E.2d 191, 201 (1976)).

2018See State v. Buckner, 351 N.C. 401 , 411–12, 527 S.E.2d 307, 314 (2000) (trial court must conduct in camera review when there is a dispute as to the scope of a defendant’s waiver of the attorney-client privilege, such as would be the case when a defendant has asserted an ineffective assistance of counsel claim); . . . see also Willis v. Duke Power Co., 291 N.C. 19, 36 , 229 S.E.2d 191, 201 (1976) (trial court may require in camera inspection of documents to determine if they are work-product).

2018See State v. Buckner, 351 N.C. 401 , 411–12, 527 S.E.2d 307, 314 (2000) (trial court must conduct in camera review when there is a dispute as to the scope of a defendant’s waiver of the attorney-client privilege, such as would be the case when a defendant has asserted an ineffective assistance of counsel claim); . . . see also Willis v. Duke Power Co., 291 N.C. 19, 36 , 229 S.E.2d 191, 201 (1976) (trial court may require in camera inspection of documents to determine if they are work-product).

2020Id. at 342, 737 S.E.2d at 370 (“This definition suggests that the General Assembly’s use of the word “provision” was meant to refer only to other statutory clauses and not to common law doctrines such as the attorney-client privilege and work-product doctrine. . . .

2020Id. at 342, 737 S.E.2d at 370 (“This definition suggests that the General Assembly’s use of the word “provision” was meant to refer only to other statutory clauses and not to common law doctrines such as the attorney-client privilege and work-product doctrine. . . .

2019While the attorney-client privilege generally functions identically in both civil and criminal proceedings, see Swidler & Berlin, 524 U.S. at 408-09, several courts have recognized that the crime-fraud exception may apply differently in the grand jury context, see In re Napster Copyright Litig., 479 F.3d at 1094-95 (“[I]n a civil case the burden of proof that must be carried by a party seeking outright disclosure of attorney-client communications under the crime-fraud exception should be preponderance of the evidence.”); Haines v. Liggett Grp., Inc., 975 F.2d 81 , 97 n.8 (3d Cir. 1992) (“We co

2019Although “the attorney-client privilege is one of the oldest recognized privileges for confidential communications” and “promote[s] broader public interests in the observance of law and the administration of justice[,]” Dickson v. Rucho, 366 N.C. 332, 340 , 737 S.E.2d 362, 368 (2013) (quoting Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998)), there exists a crime-fraud exception to the privilege, which 23 The Special Master was not asked to consider, and thus did not consider, the applicability of the crime-fraud exception.

2018Attorney-Client Privilege Defendant next argues that the information regarding the location of Shaniya was inadmissible by virtue of the attorney-client privilege. **240 "It is an established rule of the common law that confidential communications made to an attorney in his professional capacity by his client are privileged, and the attorney cannot be compelled to testify to them unless his client consents." Dobias v. White , 240 N.C. 680 , 684, 83 S.E.2d 785 , 788 (1954) (citations omitted).

2018Attorney-Client Privilege Defendant next argues that the information regarding the location of Shaniya was inadmissible by virtue of the attorney-client privilege. **240 "It is an established rule of the common law that confidential communications made to an attorney in his professional capacity by his client are privileged, and the attorney cannot be compelled to testify to them unless his client consents." Dobias v. White , 240 N.C. 680 , 684, 83 S.E.2d 785 , 788 (1954) (citations omitted).

2022See Crosmun v. Trustees of Fayetteville Technical Community College, 266 N.C. App. 424 , 439-40, 832 S.E.2d 223 , 236 (2019) (“Critically, it [the attorney-client privilege] is the client’s alone to waive, for ‘[i]t is not the privilege of the court or any third party.’”) (emphasis and second alteration in original) (quoting In re Miller, 357 N.C. 316, 338 , 584 S.E.2d 722 , 788 (2003)).

2022N.C. App. 424, 439-40, 832 S.E.2d 223 , 236 (2019) (“Critically, it [the attorney-client privilege] is the client’s alone to waive, for ‘[i]t is not the privilege of the court or any third party.’”) (emphasis and second alteration in original) (quoting In re Miller, 357 N.C. 316, 338 , 584 S.E.2d 722 , 788 (2003)).

2020See generally State v. Taylor, 327 N.C. 147, 152 , 393 S.E.2d 801, 805 (1990) (“By alleging in his amended motion for appropriate relief that his court-appointed attorney, the Public Defender, rendered ineffective assistance of counsel during the trial and direct appeal of these cases, the defendant waived the benefits of both the attorney-client privilege and the work product privilege, but only with respect to matters relevant to his allegations of ineffective assistance of counsel.”).

2020See generally State v. Taylor, 327 N.C. 147, 152 , 393 S.E.2d 801, 805 (1990) (“By alleging in his amended motion for appropriate relief that his court-appointed attorney, the Public Defender, rendered ineffective assistance of counsel during the trial and direct appeal of these cases, the defendant waived the benefits of both the attorney-client privilege and the work product privilege, but only with respect to matters relevant to his allegations of ineffective assistance of counsel.”).

2022See Dobias v. White, 240 N.C. 680, 684 (1954) (noting that simply because “the evidence relates to communications between attorney and client alone does not require its exclusion” because such communications must also be confidential); see also McIntosh, 336 N.C. at 523 ; State v. McNeill, 371 N.C. 198, 240 (2018).

2022See Dobias v. White, 240 N.C. 680, 684 (1954) (noting that simply because “the evidence relates to communications between attorney and client alone does not require its exclusion” because such communications must also be confidential); see also McIntosh, 336 N.C. at 523 ; State v. McNeill, 371 N.C. 198, 240 (2018).

2021Miller, 357 N.C. at 335 (“the attorney-client privilege cannot serve as a shield for fraud or as a tool to aid in the commission of future criminal activities; if a communication is not ‘made in the course of seeking or giving legal advice for a proper purpose,’ it is not protected.”) (quoting State v. Jennings, 333 N.C. 579, 611 (1993)) (citation and quotation marks omitted); see also State v. Davenport, 227 N.C. 475, 498 (1947) (“the communication must have been made in the course of seeking legal advice for a proper purpose; hence, no privilege exists where advice is sought in aid of a cont

2019The crime-fraud exception exists to recognize that “the attorney- client privilege cannot serve as a shield for fraud or as a tool to aid in the commission of future criminal activities; if a communication is not ‘made in the course of seeking or giving legal advice for a proper purpose,’ it is not protected.” Id. (quoting State v. Jennings, 333 N.C. 579, 611 , 430 S.E.2d 188, 204 (1993)); see State v. Davenport, 227 N.C. 475, 498 , 42 S.E.2d 686 , 702-03 (1947) (“[T]he communication must have been made in the course of seeking legal advice for a proper purpose; hence, no privilege exists wher

2018Finally, "the responsibility of determining whether the attorney-client privilege applies belongs to the trial court." In re Miller , 357 N.C. at 336 , 584 S.E.2d at 787 (citing *825 Hughes v. Boone , 102 N.C. 137 , 160, 9 S.E. 286 , 292 (1889) ).

2018Finally, "the responsibility of determining whether the attorney-client privilege applies belongs to the trial court." In re Miller , 357 N.C. at 336 , 584 S.E.2d at 787 (citing *825 Hughes v. Boone , 102 N.C. 137 , 160, 9 S.E. 286 , 292 (1889) ).

2022However, “[t]he trial court is best suited to determine, through a fact-sensitive inquiry, whether the attorney- client privilege applies to a specific communication.” Friday Invs., LLC, 370 N.C. at 240 (emphasis omitted) (quoting Raymond v. N.C. Police Benevolent Ass’n, 365 N.C. 94, 100 (2011)). 35 Any Conclusions of Law that are more appropriately deemed Findings of Fact are incorporated by reference into the Court’s Findings of Fact. 22.

2022Friday Invs., LLC v. Bally Total Fitness of the Mid-Atl., Inc., 370 N.C. 235, 240 (2017) (quoting State v. Murvin, 304 N.C. 523, 531 (1981)). 21.

2020“Typically, the attorney-client privilege does not extend to billing records and expense reports.” Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999).

2007See In re Investigation of the Death of Miller, 357 N.C. 316 , 327–28, 584 S.E.2d 772 , 781–82 (2003). {57} The work-product rule protects “facts developed by [an attorney] in preparation of the case or opinions he has formed about any phase of the litigation.” Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999).

2013Importantly, “the attorney-client privilege covers only confidential communications.” State v. Brown, 327 N.C. 1, 20 , 394 S.E.2d 434, 446 (1990) (emphasis added) (citation omitted).

2013Importantly, “the attorney-client privilege covers only confidential communications.” State v. Brown, 327 N.C. 1, 20 , 394 S.E.2d 434, 446 (1990) (emphasis added) (citation omitted).

2008App. 567, 575 , 525 S.E.2d 786, 792 (2000) (noting that the burden to demonstrate the need for the attorney-client exception lies with the governmental body).

2008App. at 714-16 , 632 S.E.2d at 588-89 (discussing the competing policy interests inherent in the attorney-client exception); Multimedia Publ’g of N.C., Inc. v. Henderson County, 136 N.C.

2022However, “[t]he trial court is best suited to determine, through a fact-sensitive inquiry, whether the attorney- client privilege applies to a specific communication.” Friday Invs., LLC, 370 N.C. at 240 (emphasis omitted) (quoting Raymond v. N.C. Police Benevolent Ass’n, 365 N.C. 94, 100 (2011)). 35 Any Conclusions of Law that are more appropriately deemed Findings of Fact are incorporated by reference into the Court’s Findings of Fact. 22.

2017"The trial court is best suited to determine, through a fact-sensitive inquiry, whether the attorney-client privilege applies to a specific communication." Raymond , 365 N.C. at 100 , 721 S.E.2d at 927 (emphasis added) (citing In re Miller , 357 N.C. at 336 , 584 S.E.2d at 787 ).

2019The attorney-client privilege protects communications if: "(1) the relation of attorney and client existed at the time the communication was made, (2) the communication *561 was made in confidence, (3) the communication relates to a matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated and (5) the client has not waived the privilege." *348 Id . at 411, 628 S.E.2d at 462 (quoting State v. Murvin , 304 N.C. 523 , 531, 284 S.E.2d 289 , 294 (

2019See Sessions, 248 N.C. App. at 386, 789 S.E.2d at 857 (holding party failed to show that subject lines of e-mails exchanged with attorneys were privileged); Isom, 177 N.C. App. at 412 , 628 S.E.2d at 462 (noting that e-mail from attorney to client “requesting a meeting” would not generally be protected); Evans, 142 N.C. App. at 32 , 541 S.E.2d at 791 .

2020“The work product doctrine protects materials prepared in anticipation of litigation from discovery.” Sessions v. Sloane, 248 N.C. App. 370 , 383, 789 S.E.2d 844, 855 (2016).

2019In contrast to the attorney-client privilege, the work-product immunity doctrine protects from discovery only materials “prepared in anticipation of litigation.” Sessions v. Sloane, 248 N.C. App. 370 , 383, 789 S.E.2d 844, 855 (2016).

2020For that reason, “there is ample authority supporting the proposition that the act of raising an advice of counsel defense waives the attorney-client privilege with regard to certain matters in a particular dispute.” Richardson v. Frontier Spinning Mills, Inc., 2011 NCBC LEXIS 40 , at *7 (N.C. Super. Ct. Oct. 6, 2011); see also State v. Fair, 354 N.C. 131, 168 , 557 S.E.2d 500 , 525-26 (2001) (“Moreover, even if the communication had been confidential, defendant waived the attorney-client privilege when he presented the substance of the communication as part of his defense.”). 21.

2020For that reason, “there is ample authority supporting the proposition that the act of raising an advice of counsel defense waives the attorney-client privilege with regard to certain matters in a particular dispute.” Richardson v. Frontier Spinning Mills, Inc., 2011 NCBC LEXIS 40 , at *7 (N.C. Super. Ct. Oct. 6, 2011); see also State v. Fair, 354 N.C. 131, 168 , 557 S.E.2d 500 , 525-26 (2001) (“Moreover, even if the communication had been confidential, defendant waived the attorney-client privilege when he presented the substance of the communication as part of his defense.”). 21.

2022State v. Smith, 138 N.C. 700, 703 , 50 S.E. 859, 860 (1905). ¶ 71 Because the privilege is a protection belonging to the defendant, it may be waived by him at any time.

2022State v. Smith, 138 N.C. 700, 703 , 50 S.E. 859, 860 (1905). ¶ 71 Because the privilege is a protection belonging to the defendant, it may be waived by him at any time.

2022Co., 257 N.C. 32, 36 (1962) (explaining that if evidence is held to be privileged it is therefore inadmissible). ¶ 30 “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

2022Co., 257 N.C. 32, 36 (1962) (explaining that if evidence is held to be privileged it is therefore inadmissible). ¶ 30 “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

2022State v. White, 340 N.C. 264, 274 (1995) (“A defendant cannot be required to surrender one constitutional right in order to assert another.” (citing Simmons v. United States, 390 U.S. 377, 394 (1968))); see also State v. Diaz, 372 N.C. 493, 500 (2019). ¶ 44 In addition, while Mr. Davis’s testimony concerning trial strategy was inadmissible as evidence, the testimony regarding his professional obligations and the backlog of cases that plagued the Rowan County courts was admissible, non- privileged testimony about which Mr. Davis had personal knowledge.

2022State v. White, 340 N.C. 264, 274 (1995) (“A defendant cannot be required to surrender one constitutional right in order to assert another.” (citing Simmons v. United States, 390 U.S. 377, 394 (1968))); see also State v. Diaz, 372 N.C. 493, 500 (2019). ¶ 44 In addition, while Mr. Davis’s testimony concerning trial strategy was inadmissible as evidence, the testimony regarding his professional obligations and the backlog of cases that plagued the Rowan County courts was admissible, non- privileged testimony about which Mr. Davis had personal knowledge.

2003In this regard, and specifically with respect to the attorney-client privilege, the United States Supreme Court has stated that “ ‘since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose.’ ” Zolin, 491 U.S. at 562 , 105 L.

2003In this regard, and specifically with respect to the attorney-client privilege, the United States Supreme Court has stated that “ ‘since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose.’ ” Zolin, 491 U.S. at 562 , 105 L.