Most lawyers are familiar with the basic concepts underlying the absolute, but fragile, attorney-client privilege. But beyond those very basic principles, where do lawyers look for more specific guidance?
In Johnson v. Rubylin, Inc., the court emphasized that in California, the attorney-client privilege is “a legislative creation” that “‘shall be available only as defined by statute.’” 117 Cal. App. 5th 247, 258 (Cal. Ct. App. 2025). But in other states and in some federal court cases, lawyers may have to look to court rules, the common law and/or a combination of those three sources. Perhaps most remarkably, federal courts handling federal question cases apply their own approach, which usually mirrors generic “textbook” privilege principles.
It seems strange that perhaps the most important doctrine that every lawyer must understand rests on such varied sources.
