attorney-client privilege in Alabama

2007However, "the attorney-client privilege `may be waived , either directly or [indirectly], by the client.'" 540 So.2d at 1359 (quoting Swain v. Terry , 454 So.2d 948 , 954 (Ala. 1984) (emphasis added)).

1993Assuming that all the prerequisites for claiming the attorney-client privilege can be met, see generally Swain v. Terry, 454 So.2d 948, 953 (Ala.1984), “the public interest in preservation of the attorney-client privilege and work product immunity is a significant factor to be weighed against [the public’s right to access].” In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1315 (7th Cir.1984).

1993See 1 Thornton on Attorneys at Law § 96 (1914)." In Ex parte Griffith , 278 Ala. 344 , 350-51 , 178 So.2d 169 , 176-77 (1965), cert. denied, 382 U.S. 988 , 86 S.Ct. 548 , 15 L.Ed.2d 475 (1966), the following observations were made: "Whether a communication by a client to his attorney is privileged is a question of fact to be determined by the court.

1993See 1 Thornton on Attorneys at Law § 96 (1914)." In Ex parte Griffith , 278 Ala. 344 , 350-51 , 178 So.2d 169 , 176-77 (1965), cert. denied, 382 U.S. 988 , 86 S.Ct. 548 , 15 L.Ed.2d 475 (1966), the following observations were made: "Whether a communication by a client to his attorney is privileged is a question of fact to be determined by the court.

2005In Click , we stated: "A postconviction petitioner who raises a Sixth Amendment claim of ineffective assistance of counsel `waives the attorney-client privilege as to matters reasonably related to the claim of inadequate representation.' United States v. Mansfield, 33 M.J. 972, 984 (A.F.C.M.R. 1991), review granted, 37 M.J. 246 (C.M.A.), aff'd, 38 M.J. 415 (C.M.A. 1993), cert. denied, 511 U.S. 1052 , 114 S.Ct. 1610 , 128 L.Ed.2d 338 (1994).

2004(See footnote 1, which enumerates the allegations made.) A postconviction petitioner who raises a Sixth Amendment claim of ineffective assistance of counsel ‘waives the attorney-client privilege as to matters reasonably related to the claim of inadequate representation.’ United States v. Mansfield, 33 M.J. 972, 984 (A.F.C.M.R.1991), review granted, 37 M.J. 246 (C.M.A.), aff'd, 38 M.J. 415 (C.M.A.1993), cert. denied, 511 U.S. 1052 , 114 S.Ct. 1610 , 128 L.Ed.2d 338 (1994).

2008Co., [1050517 and 1050519, September 15, 2006] ___ So.2d ___ (Ala.2006) (table). [4] Further, the main opinion cites Ex parte Great American Surplus Lines Insurance Co., 540 So.2d 1357 (Ala. 1989), for the proposition that "an insurer's response that it relied on the advice of counsel in making its decision to deny coverage [is] insufficient to evidence an intent to waive the attorney-client privilege." 990 So.2d at 364 .

2008Further, the main opinion cites Ex parte Great American Surplus Lines Insurance Co., 540 So.2d 1357 (Ala.1989), for the proposition that “an insurer's response that it relied on the advice of counsel in making its decision to deny coverage [is] insufficient to evidence an intent to waive the attorney-client privilege.” 990 So.2d at 364.

2009Richards v. Lennox Indus., Inc., 574 So.2d 736 (Ala.1990).

1993In Alabama, the attorney-client privilege is codified in Ala. Code 1975, § 12-21-161 , which states: "No attorney or his clerk shall be competent or compelled to testify in any court in this state for or against the client as to any matter or thing, knowledge of which may have been acquired from the client, or as to advice or counsel to the client given by virtue of the relation as attorney or given by reason of anticipated employment as attorney unless called to testify by the client, but shall be competent to testify, for or against the client, as to any matter or thing the knowledge of whic

2000App.1993), quoting Goza v. Goza, 470 So.2d 1262, 1266 (Ala.Civ.App.1985).

1993"Before the attorney-client privilege attaches, there must be a communication between the attorney and the client that is confidential, Sawyer v. Stanley , 241 Ala. 39 , 1 So.2d 21 (1941), and it must have been communicated because of the attorney-client relationship. § 12-21-161 , Code 1975." Goza v. Goza , 470 So.2d 1262 , 1266 (Ala.Civ.App. 1985) (emphasis added).

2014Group, Inc., 987 So.2d 540, 547 (Ala.2007).” Ex parte Mobile Serv.

2013Group, Inc., 987 So.2d 540, 547 (Ala.2007).

2011We recognize that a defendant “who raises a Sixth Amendment claim of ineffective assistance of counsel ‘waives the attorney-client privilege as to matters reasonably related to the claim of inadequate representation.’ ” State v. Click, 768 So.2d 417, 421 (Ala.Crim.App.1999) (quoting United States v. Mansfield, 38 M.J. 972 , 984 (A.F.C.M.R.1991), affd, 38 M.J. 415 (C.M.A.1993)).

2008The majority view is consistent with our holding in State v. Click, 768 So.2d 417, 421 (Ala.Crim.App.1999), where we stated: "A postconviction petitioner who raises a Sixth Amendment claim of ineffective assistance of counsel 'waives the attorney-client privilege as to matters reasonably related to the claim of inadequate representation.' ” .

2008Evid., incorporates into the Rules of Evidence the attorney-client privilege, stating, in pertinent part: "A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or a representative of the client and the client's attorney or a representative of the attorney...." This Court has stated: "`"Whether a communication is privileged is a question of fact to be determined by the trial court from the evidence presente

2008Evid., incorporates into the Rules of Evidence the attorney-client privilege, stating, in pertinent part: “A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or a representative of the client and the client’s attorney or a representative of the attorney .... ” This Court has stated: “ ‘ “Whether a communication is privileged is a question of fact to be determined by the trial court from the evidence pres

2008Ctr., 683 So.2d 409, 412 (Ala.1996)).

2008Ctr., 683 So.2d 409, 412 (Ala.1996)).

2008With respect to discovery request # 4, the main opinion quotes Ex parte State Farm & Casualty Co., 794 So.2d 368, 376 (Ala.2001), for the following principle: "`The question whether a party has implicitly waived the attorney-client privilege "turns on whether the actual content of the attorney-client communication has been placed in issue [in such a way] that the information is actually required for the truthful resolution of the issues raised in the controversy." See Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d [156], 160 [(R.I. 2000)].'" 990 So.2d at 363 .

2008With respect to discovery request # 4, the main opinion quotes Ex parte State Farm & Casualty Co., 794 So.2d 368, 376 (Ala.2001), for the following principle: “ ‘The question whether a party has implicitly waived the attorney-client privilege “turns on whether the actual content of the attorney-client communication has been placed in issue [in such a way] that the information is actually required for the truthful resolution of the issues raised in the controversy.” See Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d [156], 160 [(R.I.2000) ].’ ” 990 So.2d at 363.

2006Herbes v. Graham, 180 Ill.App.3d 692, 699 , 536 N.E.2d 164, 168 , 129 Ill.Dec. 480, 484 (1989), held that cases involving the attorney-client privilege “focus on the client’s viewpoint rather than that of the attorney.” And in In re Anonymous, 655 N.E.2d 67, 70 (Ind.1995), the Supreme Court of Indiana held that an “important factor is the putative client’s subjective belief that he is consulting a lawyer in his professional capacity .... ” In his affidavit, Father Zoghby clearly and unequivocally stated that he signed an authorization releasing his treatment records to Archbishop Lipscomb and

2006Herbes v. Graham, 180 Ill.App.3d 692, 699 , 536 N.E.2d 164, 168 , 129 Ill.Dec. 480, 484 (1989), held that cases involving the attorney-client privilege “focus on the client’s viewpoint rather than that of the attorney.” And in In re Anonymous, 655 N.E.2d 67, 70 (Ind.1995), the Supreme Court of Indiana held that an “important factor is the putative client’s subjective belief that he is consulting a lawyer in his professional capacity .... ” In his affidavit, Father Zoghby clearly and unequivocally stated that he signed an authorization releasing his treatment records to Archbishop Lipscomb and

2006Other courts have held that "[i]n determining whether an attorney-client relationship has been created, the focus is on the putative client's subjective belief that he is consulting a lawyer in his professional capacity, and on his intent to seek professional advice." Dalrymple v. National Bank Trust Co. , 615 F.Supp. 979 , 982 (W.D.Mich.1985).

2006Other courts have held that “[i]n determining whether an attorney-client relationship has been created, the focus is on the putative client’s subjective belief that he is consulting a lawyer in his professional capacity, and on his intent to seek professional advice.” Dalrymple v. National Bank & Trust Co., 615 F.Supp. 979, 982 (W.D.Mich.1985).

2006See, generally, Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 358 , 105 S.Ct. 1986 , 85 L.Ed.2d 372 (1985) (“[T]he trustee of a corporation in bankruptcy has the power to waive the corporation’s attorney-client privilege with respect to prebankruptcy communications.”).

2006See, generally, Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 358 , 105 S.Ct. 1986 , 85 L.Ed.2d 372 (1985) (“[T]he trustee of a corporation in bankruptcy has the power to waive the corporation’s attorney-client privilege with respect to prebankruptcy communications.”).

2005The purpose of the attorney-client privilege, upon which the psychotherapist-patient privilege is modeled, is to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of the law and administration of justice." Upjohn Co. v. United States , 449 U.S. 383 , 389 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981) (holding that communications by corporate employees to counsel made in order to secure advice were protected); see also Jay v. Sears Roebuck Co. , 340 So.2d 456 (Ala.Civ.App. 1976). 11 But see Rudder , 507 So.2d at 4

2005The purpose of the attorney-client privilege, upon which the psychotherapist-patient privilege is modeled, is to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of the law and administration of justice." Upjohn Co. v. United States , 449 U.S. 383 , 389 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981) (holding that communications by corporate employees to counsel made in order to secure advice were protected); see also Jay v. Sears Roebuck Co. , 340 So.2d 456 (Ala.Civ.App. 1976). 11 But see Rudder , 507 So.2d at 4

1993In Alabama, the attorney-client privilege is codified in Ala. Code 1975, § 12-21-161 , which states: "No attorney or his clerk shall be competent or compelled to testify in any court in this state for or against the client as to any matter or thing, knowledge of which may have been acquired from the client, or as to advice or counsel to the client given by virtue of the relation as attorney or given by reason of anticipated employment as attorney unless called to testify by the client, but shall be competent to testify, for or against the client, as to any matter or thing the knowledge of whic

1993In Alabama, the attorney-client privilege is codified in Ala. Code 1975, § 12-21-161 , which states: "No attorney or his clerk shall be competent or compelled to testify in any court in this state for or against the client as to any matter or thing, knowledge of which may have been acquired from the client, or as to advice or counsel to the client given by virtue of the relation as attorney or given by reason of anticipated employment as attorney unless called to testify by the client, but shall be competent to testify, for or against the client, as to any matter or thing the knowledge of whic

1993See 1 Thornton on Attorneys at Law § 96 (1914)." In Ex parte Griffith , 278 Ala. 344 , 350-51 , 178 So.2d 169 , 176-77 (1965), cert. denied, 382 U.S. 988 , 86 S.Ct. 548 , 15 L.Ed.2d 475 (1966), the following observations were made: "Whether a communication by a client to his attorney is privileged is a question of fact to be determined by the court.

1993See 1 Thornton on Attorneys at Law § 96 (1914)." In Ex parte Griffith , 278 Ala. 344 , 350-51 , 178 So.2d 169 , 176-77 (1965), cert. denied, 382 U.S. 988 , 86 S.Ct. 548 , 15 L.Ed.2d 475 (1966), the following observations were made: "Whether a communication by a client to his attorney is privileged is a question of fact to be determined by the court.

2011In this article, discussing criminal communications, the author notes, ‘Such communications are concerned with the commission of a crime, not with the privacy of a marriage; the information sought has nothing to do with intimate marital relations and the privacy interests of husband and wife are not at stake.’ Id. at 753. ‘This privilege is akin to the attorney-client privilege, also designed to protect the confidences of the communicator, which has been held not to extend to communications in furtherance of criminal activity.’ Ammar, 714 F.2d at 258. “[The defendant] argues that the ‘crime-fr

1992Compare Arnold v. State , 353 So.2d 524 , 526 (Ala. 1977) (the waiver of the marital privilege belongs to the communicating spouse); Swain v. Terry , 454 So.2d 948 , 953-54 (Ala. 1984) (the waiver of the attorney-client privilege belongs solely to the client).

2001This Court has stated that "the Alabama legislature did not limit the [psychotherapist-patient] privilege with specific exceptions," 628 So.2d at 504 , but that that "privilege, however, is subject to certain judicially created exceptions," Id. (citing cases in which this Court has recognized exceptions to the privilege); 2 see also Ex parte Great American Surplus Lines, Inc. , 540 So.2d 1357 (Ala. 1989) (holding that the attorney-client privilege is almost absolute, being subject only to certain narrow exceptions).

2001This Court has stated that "the Alabama legislature did not limit the [psychotherapist-patient] privilege with specific exceptions," 628 So.2d at 504 , but that that "privilege, however, is subject to certain judicially created exceptions," Id. (citing cases in which this Court has recognized exceptions to the privilege); 2 see also Ex parte Great American Surplus Lines, Inc. , 540 So.2d 1357 (Ala. 1989) (holding that the attorney-client privilege is almost absolute, being subject only to certain narrow exceptions).