16. Should the court uphold the defendant's privilege claim?

The attorney-client privilege ensures that communications between an attorney and client, made during professional consultation, are privileged from disclosure. A client has a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications between herself (or her representative) and her attorney (or her attorney's representative). The attorney-client privilege requires that the attorney-client relationship exists at the time of communications. The privilege may be inapplicable in a dispute between multiple clients who were originally on the same side of a transaction. If two clients retain a single lawyer, and a dispute later breaks out between the two, the privilege does not apply. This is true whether or not the other client was privy to the communications in question.

The attorney-client privilege applies indefinitely, and even survives death. Termination of the attorney-client relationship does not terminate the privilege itself.

B is correct. An exception to the attorney-client privilege arises in the case of joint representation. When two clients hire one attorney to draft a partnership agreement, and the partnership later splits, the privilege does not apply later in litigation. In this case, the plaintiff and defendant were partners who jointly hired the attorney. Now that the partnership has dissolved, the attorney-client privilege does not extend to litigation between the two clients previously represented jointly.

A is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the attorney-client privilege does not apply here, it is not because the professional relationship between them had ended; the privilege applies indefinitely and even survives a client's death. If a third party were to try to access communications between the attorney and either client, they would be privileged. The proper basis for denying this claim is that the privilege does not extend to communications between two jointly represented clients during a later dispute.

C is incorrect. As explained above, the usual ability of a client to block communications with his attorney does not apply when the client was jointly represented with another and a subsequent dispute arises. Therefore, neither the plaintiff nor the defendant may block disclosure of the statements made during previous meetings.

D is incorrect. Although the clients originally sought the attorney's services for a partnership, the fact that it later dissolved and a dispute arose renders the privilege inapplicable. One client would not be able to waive it while the other invokes it. As such, it will be lifted altogether.