Class 27: Introduction to Privileges; Attorney-Client Privilege - Apr. 17

Question 1

What is a privilege? (Q)

Answer 1

A privilege is defined as a special legal right, exemption, or immunity that gives someone the legal freedom to do or refrain from doing a given act.

Question 2

What is the difference between a qualified privilege and an absolute privilege? (Q)

Answer 2

The difference between a qualified privilege and an absolute privilege lies in whether the privilege can be overcome by a showing of need for disclosure of the information. A qualified privilege is a limited privilege that may be overcome by a balancing of the interests demonstrating that the need for disclosure of the information overrides the interest in protecting the confidentiality of the information. By contrast, an absolute privilege cannot be overcome by a showing of need or balancing of interests—it provides complete protection from disclosure of the information.

Question 3

Are privileges codified in the Federal Rules of Evidence (FRE)? (Q)

Answer 3

No. Privileges are not codified in the FRE.

Question 4

What privileges do federal courts recognize under federal common law? (Q)

Answer 4

The federal courts recognize the following privileges under federal common law:

spousal testimonial (spousal immunity) privilege,
marital communications privilege,
attorney-client privilege,
psychotherapist-patient privilege,
social worker-client privilege, and
clergy-penitent privilege.

Question 5

What communications are protected by the attorney-client evidentiary privilege? (Q)

Answer 5

The attorney-client evidentiary privilege protects communications made between a client and an attorney if the communication:

is intended to be, and has been, kept confidential and
was made for purpose of obtaining or providing legal services.

Question 6

For purposes of the attorney-client privilege, who qualifies as an attorney? (Q)

Answer 6

For purposes of the attorney-client privilege, an attorney is any person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

In other words, the attorney must be licensed to practice law or reasonably believed by the client to be a licensed attorney for the attorney-client privilege to apply.

Question 7

For purposes of the attorney-client privilege, may a client be either an individual or an organization? (Q)

Answer 7

Yes. For purposes of the attorney-client privilege, a client may be any person, public officer, corporation, association, or organization who obtains professional legal services from an attorney or consults an attorney for the purpose of obtaining professional legal services. Even if the client does not actually hire the attorney, she will still be considered a client for purposes of the attorney-client privilege, as long as she consulted the attorney for the purpose of potentially obtaining legal services.

Question 8

Does the client hold the attorney-client privilege? (Q)

Answer 8

Yes. Under the attorney-client privilege, the client holds the privilege with respect to confidential communications made to an attorney for the purpose of legal representation. This means that only the client may assert the privilege (i.e., refuse to disclose, or prevent someone else from disclosing a privileged communication), and the attorney may assert it only on the client’s behalf.

Question 9

Does the attorney-client privilege attach as soon as the client or potential client contacts an attorney about legal representation? (Q)

Answer 9

Yes. The attorney-client privilege attaches as soon as the client or potential client contacts the attorney about legal representation. Once attached, the privilege applies forever. It continues to apply after the client is no longer a client of the attorney, and even after the client’s death. That said, the attorney-client privilege only applies to legal representation; it does not apply when a person attempts to retain an attorney for something that a non-attorney can do (e.g., providing accounting assistance or seeking relationship advice).

Question 10

Does attorney-client privilege shield the identity of the client? (Q)

Answer 10

No. The attorney-client privilege generally does not shield:

the identity of the client,
the fact that the attorney has been hired by the client, or
the legal fee arrangements.
In other words, the attorney-client privilege generally does not extend to non-substantive matters incident to legal representation.

Question 11

Does the attorney-client privilege extend to the attorney’s non-attorney necessary agents? (Q)

Answer 11

Yes. The attorney-client privilege extends to the attorney’s non-attorney agents, such as paralegals, private investigators, and doctors, who are necessary to effectuate the underlying legal representation. Thus, communications involving these agents will also be privileged as long as they meet the other requirements for the privilege to apply.

Question 12

Does the attorney-client privilege apply only to communications that the client reasonably believes are confidential? (Q)

Answer 12

Yes. The attorney-client privilege applies only to communications that the client reasonably believes are and will remain confidential. Generally, this means that the privilege lapses:

when communications are made to a third party who is not the attorney or a necessary agent or
if communications are overheard by third parties (e.g., in a crowded elevator).

Question 13

If an attorney represents two or more people jointly, and a lawsuit subsequently arises between those parties, may one person assert the attorney-client privilege to prevent disclosure of any of his relevant one-on-one confidential communications? (Q)

Answer 13

No. If an attorney represents two or more people jointly, and a lawsuit subsequently arises between those parties, one person may not assert the attorney-client privilege in that lawsuit to prevent disclosure of any of his relevant one-on-one confidential communications with the attorney. The parties may; however, assert the privilege in a lawsuit against anyone else.

Question 14

Does the attorney-client privilege extend to communications between a corporation’s attorneys and employees of the corporation? (Q)

Answer 14

Yes. The attorney-client privilege extends to communications between a corporation’s attorneys and employees of the corporation. In those cases, the privilege is held by the corporation, not the employee engaging in the communications.

Question 15

May the attorney-client privilege be waived by the holder of the privilege? (Q)

Answer 15

Yes. The attorney-client privilege may be waived by the holder of the privilege (i.e., the client). After a valid waiver, the attorney may disclose communications or be compelled to testify.

Question 16

Does a client’s assertion of the advice-of-counsel defense waive the attorney-client privilege? (Q)

Answer 16

Yes. A client’s assertion of the advice-of-counsel defense (i.e., asserting that the client relied on the attorney’s advice as an element of a claim or defense) constitutes an implied waiver of the attorney-client privilege. Courts have recognized that in these circumstances, the client has chosen to make the attorney’s advice an issue in the litigation.

Question 17

Are there any exceptions to the attorney-client privilege that allow an attorney to disclose confidential client communications? (Q)

Answer 17

Yes. There are several exceptions to the attorney-client privilege that allow an attorney to disclose confidential client communications:

the crime-fraud exception (i.e., if the client seeks or obtains legal services for the purpose of enabling or aiding anyone to plan or commit a crime or fraud); (covered in class)

the deceased-client exception (i.e., if multiple parties claim an inheritance from the same deceased client);
the breach-of-duty exception (i.e., if the client breaches a duty to the attorney, or if the attorney breaches a duty to the client);
the joint-client exception (i.e., if two or more clients retain or consult an attorney together and are later involved in an action against one another); and
the Garner exception (i.e., if stockholders request communications between upper corporate management and the corporation’s attorney and have shown good cause for the need to access the communications). (not covered in class)

Question 18

Does an inadvertent disclosure of privileged information to a third party always constitute a waiver of the attorney-client privilege? (Q)

Answer 18

No. An inadvertent disclosure of privileged information to a third party does not always constitute a waiver of the attorney-client privilege. An inadvertent disclosure to a third party does not constitute a waiver if the holder of the privilege:

took reasonable steps to prevent disclosure and
promptly took reasonable steps to rectify the mistake (e.g., by immediately notifying the party to which it made the disclosure and ensuring the materials are returned or destroyed).

Question 19

What is the work product doctrine? (Q)

Answer 19

The work-product doctrine provides that tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial is protected from disclosure.

Question 20

What is a qualified privilege? (Q)

Answer 20

A qualified privilege is a limited privilege that may be overcome by a balancing of the interests demonstrating that the need for disclosure of the information overrides the interest in protecting the confidentiality of the information.

Question 21

What is an absolute privilege? (Q)

Answer 21

An absolute privilege cannot be overcome by a showing of need or balancing of interests—it provides complete protection from disclosure of the information.

Question 22

What is the scope of privileges? (Russo)

Answer 22

Privileges typically protect:

(1) Confidential communications
(2) With a specific person
(3) Made for a specific purpose

(4/18)

Question 23

What is the common interest doctrine? (Q)

Answer 23

Under the common-interest doctrine, attorney-client privilege may still apply to confidential communications shared with a third party if the third party and the client share a common legal interest—e.g., alleged co-conspirators who are tried separately—and agree to jointly pursue that interest. For the common-interest doctrine to apply, the agreement to jointly pursue the common interest must be made before the communication; the doctrine cannot apply retroactively.

Question 24

How may the work-product doctrine be overcome? (Q)

Answer 24

The work-product doctrine may be overcome if a requesting party shows that the material is not otherwise discoverable, and the party has a substantial need for the material to prepare its case and cannot obtain the material’s substantial equivalent by other means without undue hardship.

Question 25

What is the corporate client test from Upjohn? (Russo)

Answer 25

The corporate client test from Upjohn states that a person is a corporate client if:

(1) An employee of the corporation
(2) Who is directed to speak
confidentially
(3) To the corporation’s lawyer
(4) About a matter within the scope of the employee’s duties
(5) For the purpose of obtaining legal advice for the corporation and or to prepare for litigation

(4/18)