The shape of attorney-client privilege in American law comes from a short list of famous attorney-client privilege cases: Upjohn Co. v. United States drew the line around corporate communications, Swidler & Berlin v. United States confirmed the privilege outlives the client, Clark v. United States gave the crime-fraud exception its enduring language, People v. Belge tested how far the privilege reaches in the face of public outrage, and United States v. Heppner has started to answer what happens when clients bring artificial intelligence into the picture. The privilege itself keeps communications between a lawyer and client confidential so clients can speak freely; the client holds it, and only the client can waive it.1Legal Information Institute. Attorney-Client Privilege
Upjohn Co. v. United States (1981): Who Counts as the Client Inside a Company
A corporation can’t talk to a lawyer. Only its people can. Before 1981, federal courts often applied a “control group” test that limited privilege to communications between attorneys and the senior executives with authority to act on legal advice. Everyone below that line was exposed.
Upjohn, a pharmaceutical company, discovered that some of its foreign subsidiaries had made questionable payments to government officials overseas. The general counsel launched an internal investigation, sending questionnaires to managers and interviewing employees across the organization. When the IRS opened its own investigation into the tax consequences, it issued a summons for the questionnaires and interview notes.2Justia U.S. Supreme Court Center. Upjohn Co. v. United States, 449 U.S. 383 (1981)
The lower court sided with the IRS. The Supreme Court reversed, with all nine justices agreeing the control group test should go, though Chief Justice Burger wrote separately on some points.3Library of Congress. Upjohn Co. v. United States, 449 U.S. 383 (1981) The reasoning was practical. The employees most likely to know facts that create legal liability for a corporation are rarely the ones in the executive suite. A shipping clerk who saw illegal dumping or a sales rep who took part in a price-fixing scheme often holds the information counsel needs most. Cutting them out of the privilege would mean corporate attorneys could never get the full picture.
The Court held that communications from any corporate employee to the company’s attorneys are privileged when they are made at the direction of management, concern matters within the scope of the employee’s duties, and are for the purpose of obtaining legal advice for the corporation.2Justia U.S. Supreme Court Center. Upjohn Co. v. United States, 449 U.S. 383 (1981) That three-part framework still governs corporate privilege today, and it is what allows companies to conduct thorough internal investigations with any level of the workforce.
Swidler & Berlin v. United States (1998): The Privilege Survives Death
Whether the privilege dies with the client stayed an open question until Swidler & Berlin. The case grew out of the investigation into the 1993 White House Travel Office firings. Vincent Foster, then Deputy White House Counsel, met with attorney James Hamilton of Swidler & Berlin for a legal consultation. Nine days later, Foster died by suicide.4Justia U.S. Supreme Court Center. Swidler and Berlin v. United States, 524 U.S. 399 (1998)
The Independent Counsel wanted Hamilton’s handwritten notes from that meeting. The argument for disclosure was intuitive. Foster was dead, so he couldn’t be prosecuted, and the notes might contain evidence relevant to a criminal investigation. The prosecution asked the Court to adopt a balancing test where judges would weigh the need for the evidence against a deceased client’s diminished interest in secrecy.
The Court refused, holding 6-3 that the privilege survives death.5Legal Information Institute. Swidler and Berlin v. United States, 524 U.S. 399 (1998) The majority’s reasoning turned on what happens before death, not after it. If clients knew their most sensitive communications could be pried open once they died, they would hold back during the consultation. People seeking advice about estate planning, tax exposure, or potential criminal liability — the situations with the highest stakes — would be the most chilled.
Justice O’Connor, writing for the three dissenters, argued that a deceased client’s interest in confidentiality is sharply reduced and that an innocent criminal defendant’s need for exculpatory evidence should sometimes override a dead person’s secrets.6Legal Information Institute. Swidler and Berlin v. United States, 524 U.S. 399 (1998) – Dissent The majority acknowledged the concern but concluded that case-by-case balancing would introduce too much uncertainty. The privilege has to be absolute for clients to rely on it.
The Testamentary Exception
The privilege does bend after death in one narrow situation. Most courts recognize a “testamentary exception” that allows disclosure of communications between a deceased client and their estate-planning attorney when the dispute is among people who stand to inherit. The idea is that the person who died would have wanted their lawyer to speak up if doing so ensured their wishes were carried out. The exception doesn’t open the door for creditors or unrelated third parties. It applies only to disputes among beneficiaries about what the deceased intended.
Clark v. United States (1933): The Crime-Fraud Exception
The privilege has always had a line it won’t cross. It does not protect communications made to further a crime or fraud. This principle is one of the oldest limits on the privilege, and Justice Cardozo gave it its most quoted articulation in Clark v. United States.
The Clark case itself involved juror misconduct rather than a typical attorney-client scenario, but Cardozo used the opinion to state the broader rule: “The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.”7Justia U.S. Supreme Court Center. Clark v. United States, 289 U.S. 1 (1933) That language has been cited in thousands of subsequent cases and remains the standard formulation of the exception.
The distinction that matters is timing. If you committed a crime last year and hire a lawyer to defend you, every word you share about what happened is fully protected. The privilege exists precisely so people in legal trouble can tell their attorneys the truth. But if you sit down with a lawyer and ask for help planning a fraud that hasn’t happened yet, or advice on how to continue one already underway, those communications fall outside the privilege entirely. The purpose of the consultation shifts from understanding the law to breaking it, and the justification for secrecy disappears.
The party trying to pierce the privilege bears the burden of proof. Courts require at least a preliminary showing before ordering disclosure. In United States v. Zolin (1989), the Supreme Court endorsed in camera review, meaning a judge can privately examine the disputed communications to decide whether the crime-fraud exception applies before revealing anything to the opposing side. That safeguard prevents fishing expeditions while still letting legitimate fraud claims proceed.
People v. Belge (1975): The Buried Bodies Case
No case illustrates the human cost of the privilege more starkly than People v. Belge, known informally as the Buried Bodies Case. In the early 1970s, New York attorneys Frank Armani and Francis Belge were appointed to represent Robert Garrow, who was on trial for murder. During the representation, Garrow confessed to his lawyers that he had killed two other people and told them where he had hidden the bodies.
The attorneys went to the locations and confirmed the bodies were there. They photographed what they found. Then they said nothing. For months, the families of the missing victims pleaded publicly for information. Law enforcement searched. The lawyers knew the answer and stayed silent.8University of Illinois College of Law. People v. Belge, 83 Misc. 2d 186 (N.Y. Cnty. Ct. 1975)
The information eventually came out during trial when Garrow took the stand and confessed. Public reaction was fierce. A grand jury investigated both attorneys. Armani was cleared. Belge was indicted for violating public health laws requiring anyone who knows of a death without medical attendance to report it to authorities.8University of Illinois College of Law. People v. Belge, 83 Misc. 2d 186 (N.Y. Cnty. Ct. 1975) The court dismissed the indictment, holding that the attorney-client privilege overrode the reporting obligation. The appellate court affirmed, relying on both the privilege and a broader interest-of-justice analysis.9CaseMine. People v. Belge
The case is taught in virtually every legal ethics course because it forces the hardest question the privilege raises. Armani and Belge did exactly what the rules required, and they endured death threats for it. Armani’s practice was nearly destroyed. The families of the victims understandably viewed the lawyers’ silence as monstrous. Both perspectives have merit, and neither legal ethics nor the courts have ever pretended the answer is comfortable. The privilege protects past crimes disclosed to counsel because without that protection, people facing serious charges would never tell their lawyers the full truth, and the right to a meaningful defense would collapse.
What Changed After Belge: Narrow Permission to Speak
The Buried Bodies Case was decided under the rules as they existed in the 1970s. The legal profession has since carved out limited circumstances where a lawyer is permitted — though rarely required — to break confidence. Under the ABA Model Rules of Professional Conduct, a lawyer may reveal client information to the extent reasonably necessary to prevent death or serious physical harm that the lawyer reasonably believes is certain to occur.10American Bar Association. Rule 1.6 Confidentiality of Information The key word is “may.” The rules give lawyers the option; they do not compel it. And the exception applies to future harm, not past events. Even under today’s rules, the attorneys in the Buried Bodies Case would have had no clear basis to reveal the locations, because the crimes were already complete and no ongoing threat existed. The Model Rules also allow disclosure when a client has used the lawyer’s own services to commit a crime or fraud causing serious financial harm to someone else, tracking the crime-fraud exception on the ethics side. Individual states adopt their own versions, and some impose stricter or broader duties than the ABA model.
United States v. Heppner (2026): Privilege Meets Artificial Intelligence
The most consequential privilege ruling in years arrived in February 2026, when Judge Jed Rakoff of the Southern District of New York held that documents a criminal defendant created using a consumer AI chatbot were not protected by attorney-client privilege or the work product doctrine. In United States v. Heppner, the defendant had fed sensitive case-related information into a publicly available AI platform on his own initiative, without direction from his attorneys, and later shared the AI-generated output with his legal team to inform their strategy.
The court’s reasoning turned on three points. There was no attorney-client relationship between the defendant and the AI, because the platform explicitly disclaimed providing legal advice. The defendant had no reasonable expectation of confidentiality, because the platform’s terms of service permitted data collection, retention, and use for training purposes. And voluntarily entering information into a third-party system amounted to a waiver, the same way sharing privileged information with any outsider destroys the privilege.
The defense argued that the AI platform functioned as a privileged intermediary, similar to how an accountant or translator brought in to help a lawyer understand complex information can be covered under the Kovel doctrine. The court rejected that argument because the defendant had used the tool independently, not at his attorneys’ direction as part of the legal representation.
Heppner is a trial-court decision and could be narrowed or reversed on appeal. But it reflects a reality that the privilege framework was built for conversations between humans. When you type sensitive information into an AI tool operated by a company whose terms let it store and train on your input, you’ve done the equivalent of discussing your case in a crowded restaurant. The confidentiality the privilege requires simply isn’t there.