DE · rules

D.R.E. 502

Lawyer-Client Privilege

activein force · 2026-09-23 – presentact-effective-date

(a) Definitions. As used in this rule:

(1) A “client” is a person, public officer or corporation, association or

other organization or entity, either public or private, who is rendered

professional legal services by a lawyer, or who consults a lawyer with a

view to obtaining professional legal services from the lawyer. For the

purposes of this Rule, “client” shall include, without limitation, officers,

directors, and employees of (a) any business entity that is organized under

the laws of this State, and (b) any business entity organized under the laws

of any nation other than the United States that owns or controls a business

entity that is organized under the laws of this State.

(2) A communication is “confidential” if not intended to be disclosed to

third persons other than those to whom disclosure is made in furtherance

of the rendition of professional legal services to the client or those

reasonably necessary for the transmission of the communication.

(3) A “lawyer” is a person authorized, or reasonably believed by the client

to be authorized, to engage in the practice of law in any state or nation.

For purposes of this Rule, “lawyer” shall include persons who are

employed or engaged by a business entity, to serve as “in house” counsel

to that entity and/or to any of its wholly owned or controlled affiliates.

(4) Omitted.

(5) A “representative of the lawyer” is one employed, or reasonably

believed by the client to be employed, by the lawyer to assist the lawyer

in the rendition of professional legal services.

(b) General rule of privilege. A client has a privilege to refuse to disclose

and to prevent any other person from disclosing confidential communications

made for the purpose of facilitating the rendition of professional legal

services to the client (1) between the client or the client’s representative and

the client’s lawyer or the lawyer’s representative, (2) between the lawyer and

the lawyer’s representative, (3) by the client or the client’s representative or

the client’s lawyer or a representative of the lawyer to a lawyer or a

representative of a lawyer representing another in a matter of common

interest, (4) between representatives of the client or between the client and a

representative of the client, or (5) among lawyers and their representatives

representing the same client.

claimed by the client, the client’s guardian or conservator, the personal

representative of a deceased client or the successor, trustee or similar

representative of a corporation, association or other organization, whether or

not in existence. A person who was the lawyer or the lawyer’s representative

at the time of the communication is presumed to have authority to claim the

privilege but only on behalf of the client.

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or fraud. If the services of the lawyer were

sought or obtained to enable or aid anyone to commit or plan to commit

what the client knew or reasonably should have known to be a crime or

fraud;

(2) Claimants through same deceased client. As to a communication

relevant to an issue between parties who claim through the same deceased

client, regardless of whether the claims are by testate or intestate

succession or by inter vivos transaction;

(3) Breach of duty by a lawyer or client. As to a communication

relevant to an issue of breach of duty by the lawyer to the client or by the

client to the lawyer;

(4) Accusations against a lawyer. As to a communication necessary for a

lawyer to defend in a legal proceeding an accusation that the lawyer

assisted the client in criminal or fraudulent conduct;

(5) Document attested by a lawyer. As to a communication relevant to

an issue concerning an attested document to which the lawyer is an

attesting witness; or

(6) Joint clients. As to a communication relevant to a matter of common

interest between or among 2 or more clients if the communication was

made by any of them to a lawyer retained or consulted in common, when

offered in an action between or among any of the clients.

(7) Public officer or agency. [Omitted].

History

Comment See comment to D.R.E. 501. The subsections of D.R.E. 502(a) were reordered in 2001 to track U.R.E. 502(a). U.R.E. 502 was based on a draft of F.R.E. 503. U.R.E. 502(a) (4) was not adopted in Delaware. It was believed that a definition of a representative of a client should be left to case law. D.R.E. 502(b) tracks U.R.E. 502(b) except that the word “therein” and the words “party in a pending action and concerning” were deleted and the word “in” was inserted in lieu thereof in D.R.E. 502(b)(3). The purpose of this change was to make D.R.E. 502(b)(3) comply with the original draft of the F.R.E. prepared by the Supreme Court Advisory Committee and to make it clear that D.R.E. 502(b)(3) applies even if no litigation is actually pending. D.R.E. 502(c) tracks U.R.E. 502(c). D.R.E. 502(d)(1), (2), (3), (4), (5), and (6) track U.R.E. 502(d)(1), (2), (3), (4) (5), and (6). U.R.E. 502(d)(7) was not adopted. The 1980 Committee believed that the Delaware Freedom of Information Act (29 Del. C., Chapter 100) adequately covers the area of privilege as it relates to public officers of agencies. The 1980 Committee also believed that U.R.E. 502(d)(7) would impose too great a burden upon a governmental agency. For prior Delaware cases illustrating the law covered by this D.R.E., see State Hwy. v. 62,662.47 Acres of Land, Del. Super., 193 A.2d 799 (1963); Texaco, Inc. v. Phoenix Steel Corp., Del. Ch., 264 A.2d 523 (1970); Wallace v. Wilmington & N.R. Co., Del. Super., 8 Houst. 529, 18 A. 818 (1889); Riggs Nat’l Bank v. Zimmer, Del. Ch., 355 A.2d 709 (1976); Phillips v. Delaware Power & Light Co., Del. Super., 194 A.2d 690 (1963); Valente v. Pepsico, 68 F.R.D. 361 (D. Del. 1975); Graham v. Allis-Chalmers Mfg. Co., Del. Supr., 188 A.2d 125 (1963); Wise v. Western Union Tel. Co., Del. Super., 178 A. 640 (1935); State v. Brown, Del. Oyer & Term., 36 A. 458 (1896). D.R.E. 502 was amended in 2017 to clarify that the attorney-client privilege extends to foreign parent entities of Delaware subsidiaries and covers in-house counsel of foreign entities and controlled affiliates.

Provenance

Source: courts.delaware.gov
Retrieved: 2026-09-23
Edition: 2026-09-23
Content hash: fa58ca948061589625d1a789639228b30b58a9a69546c325184721bf90499f76

View the official source →

The link goes to the issuing authority’s own document — the one we read to produce this record. Where a source publishes whole titles rather than sections, your browser may need a moment to jump to the provision.

Unofficial copy of government-published law, reproduced from official sources with full provenance. Not an official publication; verify against official sources before relying on it in a filing. Records in the 'guidance' corpus, and only that corpus, are sub-regulatory (interpretive guidelines, survey procedures) and are not binding law. Validity bounds follow each jurisdiction's declared temporalBasis.

Coverage · API docs