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3. The audiotape is most likely to be subject to subpoena if
In a suit by a plaintiff against a defendant, the plaintiff sought to subpoena an audiotape on which the defendant had narrated his version of the dispute for his attorney. Counsel for the defendant moves to quash the subpoena on the ground of privilege.
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The Federal Rules of Evidence (FRE) have no specific privilege provisions. FRE 501 provides that the privilege of a witness or person shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. Federal courts currently recognize, among others, the attorney-client privilege. The attorney-client privilege is a common law privilege, although in some jurisdictions it has been codified by statute. Essentially, 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 exist at the time of communications. The client, or her representative, must be seeking the professional services of the attorney at the crucial time. Communications made in the known presence and hearing of a stranger or other unprotected third party are not protected. Thus, if the client discloses the content of the communication to a third person not associated with the lawyer-client relationship (e.g., a friend), the privilege is lost. The privilege will not apply if the client sought or obtained the services of the attorney in order to enable or aid someone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. The attorney-client privilege also applies indefinitely. Termination of the attorney-client relationship does not terminate the privilege. It even survives the client's death.
A is correct. This is the most likely basis for subjecting the audiotape to a subpoena because, had the defendant played it for his father, he would have waived the privilege. This is because a client breaks the attorney-client privilege if he discloses the content of a communication (here, the audiotape) to a third person not associated with the protected relationship (here, the defendant's father).
B is incorrect. Even if the lawsuit alleged criminal behavior by the defendant, the protections of the attorney-client privilege would remain in effect. Only if the communication contains ongoing criminal activity or a plan to commit a future crime or fraud will the crime-fraud exception break the attorney-client privilege.
C is incorrect. A determination of whether the attorney-client privilege applies is not dependent on or in any way related to whether there are inconsistent statements on the audiotape.
D is incorrect. Even if the defendant were deceased, this would not sever the attorney-client privilege, which, unless otherwise broken, extends beyond the death of the client.