3.05 Attorney-Client Privilege

Question 1

Attorney-Client Privilege

Answer 1

Derived from Evidence and Restatement It is a small subset of confidential information

• If the requirements are met has the strongest protections
• However, burden on lawyer to show privilege exists
• Evidence has a strong presumption for disclosure

Question 2

Coverage of ACP

Answer 2

Coverage Requires ALL:

(1) A Communication Made Between
(2) Between Privileged Persons
(3) In Confidence
(4) For the Purpose of Obtaining Legal Assistance

Question 3

Communication

Answer 3

Any expression between privileged persons relating to client.

• Covers ONLY Communications, it Does Not Cover Mental Impressions
• Consider Work Product for Mental Impressions

Question 4

Between Privileged Persons, Individuals

Answer 4

Lawyer(s) and Client

Question 5

Between Privileged Persons, Organizations

Answer 5

Upjohn Standard = In House Counsel Has Privilege IF Communication:

• Otherwise QualifiesTo Lawyer
• Between an Agent of the Organization and Privileged Person
• Legal Matter of Interest to OrganizationFrom Lawyer Disclosed ONLY To (1) Privileged Persons AND (2) Other Agents Who Need to Know in Order to Act for Organization

NOTE: Lawyer Should Clearly Define Relationships

Question 6

In Confidence

Answer 6

In Time and Circumstances Communicating Person REASONABLY Believes No One Will Learn of Contents of CommunicationNOTE: Jurisdictions Vary on Use of Company Computers, Etc.

Question 7

For the Purpose of Obtaining Legal Assistance

Answer 7

Made to a Lawyer or Someone Client Reasonably Believes is a Lawyer ANDConsults for the Purpose of Obtaining Legal Assistance

Question 8

ACP Does NOT Cover

Answer 8

Protect a Crime or Fraud

• Clients Purpose, Later Accomplished, is To Engage in Such
• Client Later Uses Advice to Engage in Such [ACP Applies IF Good Faith Attempt to Figure Out Legal Course] [ACP Applies POST Crime]

Evidence = A Lawyer Must Turn Over EvidenceOrdinarily Client Identity BUT- LAST LINK DOCTRINE = ACP applies if very last thing that will tie the client to the crime and inevitably disclose all the communications.

Question 9

Waiving Privilege

Answer 9

Privilege is Waived If, Client, Clients Lawyer, or Authorized Agent of Client:

• Agrees to Waive
• Disclaims Protection of Privilege OR
• Fails to Properly Object Before TribunalSubject Matter

Waivers = Disclosure of One Thing Leads to Disclosure of Others

Inadvertent Waivers = Mistake

• Client = Makes the Information Public (Lawyer Needs to Inform Them)
• Lawyer = Sends too much out in discovery, etc.

Selective Waivers = Give a Peek, CANNOT Do Leads to Subject Matter Waiver

Privilege Survives Death

Question 10

Lawyer SHALL Make Reasonable Efforts to Protect Information

Answer 10

“FACTORS =

• Sensitivity of Information
• Extent to Which Privacy Protected by Law or Confidentiality Agreement
• Client May Require Certain Security Measures
• Informed Consent About Means Otherwise Prohibited by Rule”