Certified Legal Professional (CLP) Practice Exam

Are emails produced in litigation still protected under attorney-client privilege if a court order forbids waiver of the privilege?

1. Yes, because the court order protects against a waiver in any subsequent litigation

2. No, because the emails were produced and thus waived the privilege

3. Yes, but only if the emails were not referenced in other communications

4. No, because the email communications were not directly about the representation

The correct answer is: Yes, because the court order protects against a waiver in any subsequent litigation

The correct answer emphasizes the significance of a court order in maintaining the protection of attorney-client privilege, even in the context of litigation. When a court issues an order that explicitly forbids the waiver of attorney-client privilege, it serves as a safeguard against any future actions that might compromise that privilege. This means that, irrespective of whether the emails were produced during litigation, the court's directive ensures that the confidentiality of those communications remains intact. In the context of the legal framework surrounding attorney-client privilege, it is crucial to understand that the privilege is designed to encourage open and honest communication between clients and their legal representatives. The court order reinforces this and provides a clear distinction that, even if the emails are disclosed, the intended protection is upheld. Other options may present situations where the privilege could be considered waived or diminished due to the disclosure of the communications, but in this scenario, the strong assertion of the court’s authority to protect that privilege supersedes those concerns. Thus, the presence of a court order explicitly forbidding waiver of privilege ensures that the emails retain their protected status regardless of their production in litigation.