Sometimes, even when all five of the United Shoe requirements have been met, courts will compel disclosure of the information sought. They base exceptions to the privilege on Rule 501 of the Federal Rules of Evidence, which states that “the recognition of a privilege based on a confidential relationship … should be determined on a case-by-case basis.” Courts weigh the benefits to be gained by upholding the privilege (that is, preserving the confidence between attorney and client) against the harms that might be caused if they deny it (that is, the loss of information that would be valuable to the opposing party).
Courts have declared that the fact of an attorney-client relationship itself need not always remain privileged information (National Union Fire Insurance Co. of Pittsburgh v. Aetna Casualty & Surety Co., 384 F.2d 316 [5th Cir. 1967]); the privilege may be upheld, however, if the very existence of an attorney-client relationship could prove to be incriminating to the client (In re Michaelson, 511 F.2d 882 [9th Cir. 1975], cert. denied, 421 U.S. 978, 95 S. Ct. 1979, 44 L. Ed. 2d 469 ). The attorney-client privilege does not always protect the client’s name or the amount paid to an attorney (Wirtzv. Fowler, 372 F.2d 315 [5th Cir. 1966]). Further, the attorney’s perception of the client’s mental competency will not always be protected (United States v. Kendrick, 331 F.2d 110 [4th Cir. 1964] [holding that attorney’s testimony that client was responsive, and logical in conversation and reasoning, and that he understood that the proceedings, did not address confidential matters]).
In general, exceptions to the attorney-client privilege can prove problematic to criminal defense attorneys, who try to keep a client’s potentially incriminating disclosures confidential. One exception, however, is intended to protect attorneys: Meyerhofer v. Empire Fire & Marine Insurance Co., 497 F.2d 1190 (2d Cir. 1974), cert. denied, 419 U.S. 998, 95 S. Ct. 314, 42L. Ed. 2d 272 (1974), held that an attorney may circumvent the privilege if revealing information would relieve him or her of accusations of wrongdoing.