Attorney-Client Privilege

Question 1

Rule 501 - Basic Concept

Answer 1

• rule that corresponds to privilege
• essentially, common law largely controls (rule itself does not say much)

Question 2

Rule 501 - Text

Answer 2

The common law - as interpreted by United States courts in the light of reason and experience - governs a claim of privilege unless any of the following provides otherwise:

• US Constitution
• federal statute
• rules prescribed by SCOTUS
• BUT in civil case, state law governs privilege regarding claim or defense for which state law supplies rule of decision

Question 3

Elements of Attorney-Client Privilege

Answer 3

1) a communication,
2) made in confidence,
3) between an attorney and a client,
4) for the purpose of facilitating legal services

Question 4

Attorney-Client Privilege - Communications

Answer 4

• not all interactions are communications (ex of client drinking at dinner then driving -> attorney would need to testify to what you saw because it’s not a communication)
• payments are not communications (can be compelled to testify how much you were paid)

Question 5

Examples of Partial Communications

Answer 5

• client shoots someone in attorney’s presence, then says “What should I do?” - only question onwards is “communication”
• client hands attorney incriminating evidence and asks “should we hide?” -> the handing of the evidence to the attorney is not privileged, question onwards is

Question 6

Attorney-Client Privilege - “Made in Confidence”

Answer 6

• any third-party present potentially voids out the privilege (need not be someone adverse to client)
• judged based on what a reasonable client should have expected to be confidential, not whether the communication in fact became known

Question 7

U.S. v. Lawless

Answer 7

• client sent doc to lawyer with intent of putting it in tax return, but the doc was not put in -> client’s intent matters, so the doc is not protected by privilege
• vs. Prof noted if client had asked “I’m not sure whether to include this” the doc should still be protected

Question 8

Fiduciary Exception to Attorney-Client Privilege

Answer 8

• related to q of who is the client
• in ordinary trustee-beneficiary relationship, the beneficiaries are entitled to know legal advice that the trustee gets for their benefit
• BUT in U.S. v. Jicarilla Apache Nation, SCOTUS held this did not apply to general trust relationship between U.S. gov and the Apache Nation (think court said this was because gov. had separate legal interest of its own on which it needed advice)

Question 9

Attorney-Client Privilege - Who Qualifies as the Attorney

Answer 9

• if conversation with a non-lawyer happens at the direction of a lawyer, it’s privileged (ex: convo with attorney’s investigator - as long as purpose was ultimately to get legal advice from a lawyer, it applies)

Question 10

Joint Representation Agreements

Answer 10

• used in large litigation with lots of lawyers and lots of plaintiffs or defendants - makes sure that any convo between any pl/def and any lawyer is privileged

Question 11

Who counts as “client” for purposes of privileged attorney-client communications in a corporation?

Answer 11

SCOTUS says eval based on listed of factors:
- needs to be communication with a corporate employee and lawyer
- conversation must be at the direction of a superior
- needs to be for purpose of legal advice for the corporation (not for the individual)
- conversation must be regarding matters within employee’s duties
- employee must know what the purpose of the conversation is (only need to know speaking to get legal advice for the corporation)

*Think all these factors set out in Upjohn

Question 12

Upjohn Warning

Answer 12

• given to employees speaking to lawyers on behalf of corporations
• the lawyer will tell the employee that the lawyer represents the corporation, not the employee + therefore the conversation is only confidential unless the corporation decides otherwise
• purpose: corporation trying to protect its interests - preserving right to throw employee under the bus, need to give warning so employee knows the lawyer is not representing them

Question 13

Attorney-Client Privilege - For Purpose of Facilitating Legal Services

Answer 13

• core q is whether legal services needs to be the “primary purpose” (9th Circuit says yes) or “significant purpose” (D.C. Circuit says this)
• q comes up when dual purposes (ex: intersection of tax advice and legal advice re taxes)

Question 14

Hughes v. Meade

Answer 14

• cl. asked lawyer to deliver stolen property to police - held NOT privileged because attorney was just working as a delivery service, not as the attorney

Question 15

Firms and Internal Investigations

Answer 15

• internal investigations of law firms can be privileged, but should make sure by setting up Office of General Counsel to run internal investigations

Question 16

Attorney-Client Confidence Examples

Answer 16

• ex where not actually an attorney - still privileged because client reasonably expected that privilege would apply based on the person’s self-representation of being a licensed attorney
• ex of office email policy where all emails can be read - not privileged even if they don’t read it because you can’t expect confidentiality
• ex with window washer - depends on whether you took reasonable steps to ensure confidentiality

Question 17

Rule 502(g)(2)

Answer 17

Work Product Protection

• the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial

Question 18

Work Product and Privilege

Answer 18

• iron-clad protection for attorney mental impressions, but theoretically doesn’t protect the underlying factual info (ex: if you have a memo re horrible docs found in client’s files, would protect your impression of the files, but not the files themselves)
• with interview notes, best to argue material has been rearranged through reflection of attorney (mixing fact and impressions)
• note that factual info within work-product docs receives qualified protection - iron-clad on mental, but for facts TJ can okay it if other side can persuade they really need access

Question 19

Deposition Prep and Work Product Protections

Answer 19

• if you show client docs in prep for litigation, other side can’t ask client what docs you showed (b/c you selected those docs - selection is your mental impression)
• BUT can ask if client has seen the doc

Question 20

Rule 502 - Waiver

Answer 20

Issues concerning attorney-client privileged materials and work product materials:

1. Waiver - intentional vs. inadvertent disclosure
2. Scope of waiver
3. Federal court order
4. Agreement of parties
5. State versus federal proceedings

Question 21

Who can waive attorney-client privilege?

Answer 21

• theoretically only client, but a lot of the time lawyer does something that winds up being held to be a waiver (q of whether attorney had implied authority from client)
• if you do something in court that waives privilege, it’s assumed you had authorization from client to do so

Question 22

Situations in Which Client Automatically Waives Privilege

Answer 22

• if client sues lawyer for malpractice, lawyer can defend by including privileged info
• advice of counsel defense - can’t claim lawyer’s advice as a shield then say it’s privileged
• if client is asked a question eliciting privileged info and the attorney fails to object
• if client voluntarily discloses privileged info to a third-party

Question 23

Waiver - Intentional vs. Inadvertent Disclosure

Answer 23

• 502(a) covers intentional disclosure, vs. 502(b) covers inadvertent
• note that if inadvertent, debate turns into whether or not if it’s a waiver of privilege -> likely fight over whether you had adequate procedures in place to guard against inadvertent disclosure

Question 24

Rule 502(a)

Answer 24

If you disclose something in a federal proceeding or to a fed office/agency, + waive privilege/work product protection, the waiver extends to an undisclosed communication or info in a fed or state proceeding only if:

1) the waiver is intentional,
2) disclosed and undisclosed comm/info concern same subject matter, and
3) they ought in fairness to be considered together

Question 25

Rule 502(b)

Answer 25

If you inadvertently disclose something in a federal proceeding or to a fed office or agency, disclosure doesn't operate as a waiver in a federal or state proceeding if: 1) the disclosure is inadvertent 2) holder of privilege or protection took reasonable steps to prevent disclosure, and 3) holder promptly took reasonable steps to rectify error

Question 26

Waiver and Federal Court Order

Answer 26

- 502(d) - if you disclose something in connection to pending litigation before federal court, the court has the power to order that privilege or protection isn't waived by your disclosure -> this means that the disclosure doesn't count as a waiver in any other fed or state proceeding -think this means no one else who's suing you is allowed to use the info you disclosed either, it's treated as though it's still privileged and confidential

Question 27

Rule 502(e)

Answer 27

Controlling Effect of a Party Agreement - if you make an agreement with the other party about the effect of disclosure, it is ONLY binding on you and that party - you need the court order to make sure no one else uses the disclosure against you

Question 28

Rule 502(c)

Answer 28

Disclosure Made in State Proceeding - if the disclosure was made in state proceeding and isn't the subject of a state-court order re waiver, it doesn't operate as a waiver in federal proceedings if the disclosure either 1) wouldn't count as waiver under Rule 502 (if it had been made in federal court) OR 2) isn't a waiver under the law of the state where the disclosure occurred

Question 29

Scope of Waiver

Answer 29

- at a minimum, the waiver includes whatever you actually disclosed (von Bulow) - if your disclosure was intentional and in a judicial proceeding, then 502(a) -> you've disclosed anything else that's 1) within the same subject matter and 2) "ought in fairness to be considered together"

Question 30

Crime Fraud Exception

Answer 30

- not in the rules, but well-accepted doctrine - provides that attorney-client privilege doesn't apply when attorney services obtained for purpose of furthering future or ongoing crime/fraud (can be civil fraud too) - attorney does not need to be aware of the client's criminal purpose in order for this to apply (can be innocent) and can be compelled to disclose whatever the client said

Question 31

Crime Fraud and Gotti Prosecution

Answer 31

- government argued in-house counsel to a crime family and therefore all communications not privileged - some civil attorneys have tried to expand - say if corporation accused of fraud, in-house lawyers involved = Gotti equivalent (usually does not work though)

Question 32

United States v. Zolin

Answer 32

- steps for how to determine whether crime fraud applies - first, need showing of a factual basis to support a good faith belief by a reasonable person that the exception might apply - second, judge does an in camera review of the docs to decide from their content whether crime fraud applies - third, if the docs show crime fraud applies, they go to opponent; if not, they remain privileged - judge has the discretion to decide whether to do the in camera inspection

Question 33

In Camera Review

Answer 33

- used by judge to determine whether certain docs are privileged - applies for crime fraud - also applies if the opposing party claims you've unfairly withheld docs from discovery that aren't actually privileged