Chapter 12 Privileges

Question 1

Party’s Work Product - is it a privilege?

Answer 1

NOPE - it kinda is according to janike

Question 2

Party’s Work Product - What is covered?

Answer 2

PARTY’S MATERIALS PREPARED IN ANTICIPATION OF LITIGATION, OR FOR TRIAL, ARE COVERED
LAWYER STUFF IS A BIG PART OF IT, BUT NOT ALL OF IT
CAN BE (AND OFTEN IS) OVERRIDDEN BY A SHOWING OF NEED

Question 3

Journalist’s Privilege - how can this testimony come in?

Answer 3

Must exhaust all other possible avenues of evidence first

Question 4

JOURNALIST’S PRIVILEGE IN CIVIL CASES - Texas - Who does it cover?

Answer 4

1. COVERS PERSONS WHO DO NEWS GATHERING OR DISSEMINATION
   FOR A SUBSTANTIAL PORTION OF THEIR LIVELIHOOD, OR
   FOR SUBSTANTIAL FINANCIAL GAIN
2. Also covers their employer companies
3. Also covers university scholars and researches but no amateur bloggers

Journalist basically does not need to disclose their sources and about the facts gathered

Question 5

JOURNALIST’S PRIVILEGE IN CIVIL CASES - Texas - Requirements (2)

Answer 5

THE PRIVILEGE HAS TWO PRONGS:
1. TO REFUSE TO DISCLOSE ANY INFORMATION COLLECTED IN THAT CAPACITY, WHETHER OR NOT CONFIDENTIAL

2. TO REFUSE TO DISCLOSE SOURCES

PUBLICATION OF THE COLLECTED INFORMATION BY A NEWS MEDIUM IS NOT A WAIVER

Question 6

JOURNALIST’S PRIVILEGE IN CIVIL CASES - Texas - How can a court order disclosure by journalist?

Answer 6

If: 1) NO OTHER WAY TO OBTAIN THE EVIDENCE;

2) SUBPOENA IS NARROWLY DRAFTED; and
3) INTEREST OF JUSTICE OUTWEIGHS PUBLIC INTEREST IN NEWS FLOW

Question 7

JOURNALIST’S PRIVILEGE IN CIVIL CASES - Texas - is the news article, broadcast, etc itself privileged?

Answer 7

NOPE - will be admissible if compliant with the other rules of evidence, i.e. hearsay. Usually objectionable on hearsay

Question 8

What is a Privilege?

Answer 8

The right of a person or entity to block the admission of certain kinds of evidence in a case

Question 9

Is privilege overcome by relevance? What if the information is crucial?

Answer 9

NOPE IT CANT COME IN

Question 10

Do we have Federal Rules on Privileges?

Answer 10

No, they are Federal Standards; (but i think for JAnike’s class we’re just doing Texas Rules)

Question 11

Texas Rule on Attorney Client Privilege R 503

Answer 11

A PERSON WHO CONSULTS A LAWYER FOR THE PURPOSE OF OBTAINING LEGAL ADVICE HAS A PRIVILEGE TO BLOCK DISCLOSURE OF WHAT THE PERSON SAID OR THE LAWYER SAID, IF THE CIRCUMSTANCES WERE APPARENTLY CONFIDENTIAL

Question 12

If a person goes up to you THINKING you’re a lawyer (but youre not) and seeks legal advice is the conversation that results privileged?

Answer 12

STILL PRIVILEGED

Question 13

Do the needs of the other side create an exeption to the privilege?

Answer 13

NO

Question 14

Can one discover privileged information in some other way?

Answer 14

YES

Question 15

Texas Rule on Attorney Client Privilege R 503 - Exception that isn’t Furtherance of Crime or Fraud

Answer 15

A LATER ACTION BETWEEN THE LAWYER AND THE CLIENT

i.e. MALPRACTICE; ACTION TO COLLECT A FEE

Question 16

Texas Rule on Attorney Client Privilege R 503 - Exception :Furtherance of Crime or Fraud

Answer 16

WHERE CLIENT’S MAIN PURPOSE IS TO INVOLVE THE LAWYER IN ASSISTING IN A CRIME OR FRAUD, THE DEFINITION ISN’T MET (PURPOSE ISN’T TO GET LEGAL ADVICE)

For example, there is a difference between asking a lawyer “how to i get away with murder/tax fraud?” (not privileged) vs “I plan on doing x for my business, is this allowed?” (privileged)

Question 17

What happens if the lawyer declines the representation?

Answer 17

The privilege still stands

There is NO lawyer-client relationship needed for privilege to come into effect; privilege derives from the purpose of the communication

Question 18

Unknown Eavesdropper

Answer 18

• Apparent Confidentiality is enough to invoke privilege
• we no longer punish people because of the existence of eavesdroppers devices, but the owner of the privilege still needs to meet certain requirements to maintain the privilege from eavesdroppers or else the privilege might be waived

Question 19

Two factors that determine whether client took the steps to ensure confidentiality

Answer 19

1) effect of uninhibited consultation between attorney and client of not allowing the privilege in these circumstances
2) ability of the parties to the communication to protect against disclosures

Question 20

What is privileged exactly in an attorney client privilege conversation? What the client said? What the lawyer said? Both?

Answer 20

BOTH.
While, traditionally it was only what the client said, its possible that what the lawyer said inherently reveals what the client said e.g. “Well with what you just told me i think you’d totally be guilty of murder”

Question 21

Who has the ability to invoke the privilege? What does this imply?

Answer 21

THE CLIENT

1. ONLY client can decide whether or not to block the disclosure in court i.e. waive the privilege
2. ONLY the client can decide which of the lawyer’s helpers or client’s own helpers should learn the communication (including who can be in the room during said conversation).

Question 22

Once a client waives privilege is a lawyer required to rat out everything the client said?

Answer 22

No

Question 23

since the client “owns” the privilege, then who can waive the privilege?

Answer 23

ONLY THE CLIENT OR HIS REPRESENTATIVE WHICH IS OFTEN THE LAWYER

Question 24

How can the client waive privilege?

Answer 24

1) CLIENT CAN WAIVE BY TAKING ACTION:
BY DISCLOSURE “our lawyers said we can do this but not that”; or
BY AUTHORIZING DISCLOSURE OF THE COMMUNICATION “ok this law stuff is way in over my head, you decide when the privilege can be waived”; or
BY AUTHORIZING AN AGENT TO DECIDE ON DISCLOSURE OF THE COMMUNICATION this is where the client tells the lawyer “If the FBI comes in tell them everything, everyone else? Hushity hush hush”

2) CLIENT’S AUTHORIZATION TO WAIVE CAN BE IMPLICIT:
LAWYER FOR A LITIGANT IS USUALLY PRESUMED TO HAVE AUTHORITY TO WAIVE, UNLESS FACTS SHOW OTHERWISE

Question 25

What is involuntary waiver and how does it happen? What happens after waiver?

Answer 25

1. It is when a client waives privilege but without intending to do so. This usually happens where the client is testifying to an opinion of counsel in order to show good faith, everything is fine, absence of fraud etc. This is usually in a prospectus in a stock offering. Where the offering company in order to sell the shares wants to ensure investors that the stock is “ok” client says “this LOOKS bad, but the company has no material liability in this case because our lawyers told us to” 2. If there is waiver, then the lawyer can be deposed and then must answer to matters corresponding to the whole topic at hand 3. Other Lawyers' opinions on the topic are also waived "HEY ARENT YOU ON THAT CASE? Oh well lawyers said its not a big deal” if anyone finds out that the discussion happened, ALL RELATED PRIVILEGED COMMUNICATION IS GONE.

Question 26

No pick and choose waivers

Answer 26

WAIVING AS TO ONE COMMUNICATION USUALLY OPERATES AS A WAIVER ON OTHER PRIVILEGED COMMUNICATIONS ON SAME TOPIC, UP TO THE DATE OF THE WAIVER

Question 27

Are procedural details legal advice?

Answer 27

APPARENTLY NO > therefore not privileged

Question 28

Are physical observations of the client privileged? Why or why not?

Answer 28

NO, because it is not communication to begin with just an observation

Question 29

If a client discloses the location of evidence to an attorney and the attorney contacts a detective about its location, is this considered waiver?

Answer 29

NO, R 912d - a disclosure which is reasonably necessary to accomplish the purpose for which the attorney has been consulted is not a waiver of privilege (so its reasonably necessary to tell a detective about it if the attorney is retained for investigating purposes)

Question 30

If evidence that the attorney learns about from a client is MOVED by the attorney, is the disclosure of the evidence and the location protected by waiver?

Answer 30

NOPE, if the evidence is moved, the attorney must disclose the evidence to the police, along with information about where the attorney got it. HOWEVER, the conversation that the client gave the attorney the information is still privileged

Question 31

If clients retain separate attorneys but have a common interest in the matter being litigated can they pool information and collaborate without destroying confidentiality?

Answer 31

Yes

Question 32

If two or more clients consult the same attorney on matters of common interest are the communications between the two clients and attorney privileged against third parties?

Answer 32

Yes; So one joint client can communicate with an attorney in the presence of the other joint client without destroying confidentiality

Question 33

If two joint clients retain the same attorney, but then are against each other in litigation afterwards, Is there still attorney-client privilege?

Answer 33

no, the privilege is gone

Question 34

Failure to maintain secrecy ________ ACP when one does not take reasonable precautions to ensure confidentiality

Answer 34

WAIVES

Question 35

In terms of corporate privilege, what communication is privileged? Is it any employee that talks to in-house counsel?

Answer 35

Those that are by persons whose conduct might be IMPUTED BADLY TO THE COMPANY ARE PRIVILEGED. For example, If the company truck driver runs over someone, the testimony is privileged because their conduct can be imputed to the company. However employees who are mere witnesses would NOT be subject to privilege And their conversation is not protected

Question 36

If an employee in a company asks in-house counsel for legal advice is this protected under ACP?

Answer 36

YES

Question 37

Are names, fee arrangements, and dates protected by ACP? What is the exception?

Answer 37

This type of information is usually not protected by ACP. However, IF the disclosure of such amounts, names, and dates convey substance of confidential communication between an attorney and the client, it IS protected by ATP. Disclosure is barred when a strong probability exist that disclosureOf such information would implicate that client in the very criminal activity for which legal advice was sought. I.e. paying the IRS anonymously when you have owed the IRS money for some time. This is not that the information is incriminating, this is about the fact that the disclosure of this information is the technically a disclosure of confidential info.

Question 38

In a situation where corporate counsel speaks to a truck driver who ran over someone who can waive the privilege?

Answer 38

Technically, the privilege is in the hands of the client and in in this situation, the client is the company. Waiver is in the hands of the company. So the truck driver is at the mercy of the company and the way that the truck driver can be protected is if they get their own separate counsel

Question 39

Standard for privileged information which is client’s name (generally its not protected by A/C/P)

Answer 39

1. Reveal the legal advice that the lawyer had given 2. Constitute the last link in a chain of incriminating evidence, or 3. Reveal confidential statements or communications by the client himself 4. Does this reveal information that is tantamount to confidential professional communication? Disclosure the name of John Doe being sued for wrongful death to the Prosecutor would reveal his possible involvement in a crime in connection with that accident, which is the precise situation for which he sought legal advice. Under these circumstances his or her identity constitutes a confidential communication, the disclosure of which is prohibited by the dictates of the attorney-client privilege

Question 40

Rule 502 protects against waiver by inadvertent disclosure only on a showing that the holder of the privilege or protection did the following:

Answer 40

1) Took reasonable steps to prevent disclosure 2) And promptly took reasonable steps to rectify the error; For example two months is too long, But a weekend is not too long

Question 41

What recourse does an attorney have whenever a court demands him to reveal confidential attorneyClient privileged information?

Answer 41

1) In Texas, If the lawyer discloses the information they will not be found That they waived the privilege as long as they appeal the decision and the judge is found to be in the wrong 2) If the lawyer decides to not answer the ethical problem is solved however the judge can be very upset and throw you into the dungeons in the basement of the courthouse the option there is for the attorney to file a rent of mandamus saying that the judge has ruled incorrectly what will probably happen afterwards is that the chief justice of the higher court will call Frank the judge and tell him you do realize if we rule against you you're going to have a nasty opinion and that will probably motivate the judge to get the attorney outOf the basement.