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Chapter
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ATTORNEY-CLIENT
PRIVILEGE
The attorney-client privilege is intended to permit clients to receive informed legal advice and effective representation, which depends on “full and frank communication between attorneys and their clients.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
§ 38.02 Professional Responsibility Distinguish [550]
The attorney-client privilege should be distinguished from an attorney’s obligations under the rules governing professional responsibility. Model Rule 1.6(a) states that lawyers “shall not reveal information relating to representation of a client,” with only two narrow exceptions. While the privilege is limited to communications, the ethical rule covers all information obtain as a result of the representation. Moreover, an evidentiary privilege applies only in legal proceedings; the ethical rule applies outside legal proceedings.
The holder of the privilege is the client and not the attorney. Accordingly, only the client has the right to invoke and waive the privilege. The attorney may, however, claim the privilege on behalf of the client.
§ 38.04 Professional Relationship Requirement [551-52]
The attorney-client privilege applies only where the communication is made for the purpose of receiving legal advice. If an attorney is consulted for reasons unrelated to legal services (e.g., as a friend or business advisor), the privilege does not apply.
§ 38.05 Communications Defined [552-55]
Generally, only the communication is covered and not the facts that are the subject of the communication. Stated another way, the communication, but not the client’s knowledge, is protected by the privilege.
[A] Documents
The privilege may encompass written communications between attorney and client – e.g., letter containing legal opinion about a proposed course of conduct. However, pre-existing documents do not become privileged merely because they are transmitted to an attorney. Fisher v. United States, 425 U.S. 391, 403-04 (1976).
[B] Client Identity; Fee Arrangements
Generally, a client’s identity, the fact of consultation with or employment of an attorney, and fee arrangements do not fall within the protection of the attorney-client privilege. However, some courts extend the privilege’s protection to the name and address of the client under certain circumstances – e.g., where the revelation of the identity of the client would reveal a confidential communication.
[C] Physical Evidence
A difficult problem arises when a client delivers tangible evidence to the attorney or provides the attorney with information necessary to retrieve the evidence. Here, the privilege applies to the communication itself. The attorney may not, however, take possession and hide the evidence; this would amount to an obstruction of justice. Nor, for the same reason, may the attorney tell the client to destroy the evidence.
§ 38.06 Confidentiality Requirement [555-56]
Where the information communicated is intended to become public, the privilege does not apply.
[A] Presence of Third-Parties
The privilege does not apply when the client’s actions are inconsistent with an intention of confidentiality – for example, if the communication is made in the presence of a third person. Confidentiality will be considered preserved, however, where the third person is necessary to the legal consultation such as the case with legal secretaries, investigators, and paralegal assistants.
[B] Eavesdroppers
As long as the client did not know of the presence of an eavesdropper when the communication took place, and the client took reasonable steps to preserve confidentiality, the privilege is preserved and the eavesdropper may be prohibited from testifying about what was overheard.
§ 38.07 Attorneys & Their Agents Defined [556-59]
Agents who assist in providing legal services, such as associates and secretaries, are included.
[A] Insurance Companies
Some courts hold that communications from an insured to a representative of her insurance company come within the privilege. Other courts take a more restrictive view, requiring that “the dominant purpose of the communication” be for the insured’s defense and that the insured have a “reasonable expectation of confidentiality.” Cutchin v. State, 792 A.2d 359, 366 (Md. App. 2002).
[B] Experts
Two different uses of experts must be distinguished. First, an expert may be retained for the purpose of testifying at trial. In this situation, the privilege is waived. Second, an expert may be retained for the purpose of consultation; that is, to provide the attorney with information needed to determine whether a scientific defense is feasible. Numerous courts have held that the attorney-client privilege covers communications made to an attorney by an expert retained for the purpose of providing information necessary for proper representation. Other courts have rejected the extension of the attorney-client privilege in this context, although their reasons vary.
§ 38.08 Clients & Their Agents Defined [559-60]
The definition of client includes governmental bodies and corporations. There is often a problem in determining whether the attorney represents only the corporation or also the corporate officers.
Control group test. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the Supreme Court rejected the “control group” test as a matter of federal common law. The Court adopted a different test, the critical factors of which include: (1) whether the employee communicated with the attorney in her capacity as corporate counsel, (2) whether both were acting at the behest of their corporate superiors, (3) whether the communication was made to enable the corporation to obtain legal advice and the employee was aware of this, (4) whether the communication concerned matters within the employee’s duties, and (5) whether the communications were considered confidential when made.
§ 38.09 Joint Defense Agreements [561]
The privilege may apply in “joint defense” situations, those in which attorneys for two or more different clients confer for the purpose of advancing the same defense.
§ 38.10 Duration of the Privilege [561-62]
In Swidler & Berlin v. United States, 524 U.S. 399 (1998), the Supreme Court held that the federal attorney-client privilege survives the death of the client.
There are several well-recognized exceptions to the attorney-client privilege: (1) crime-fraud, (2) joint clients (distinguished from "joint defense" situations), (3) breach of duty by attorney or client, (4) claimant through same deceased client, and (5) document attested by lawyer.
The privilege may be waived in several ways: (1) client testifies about communication or attorney testifies about communication at client’s behest, (2) client puts the communication in issue, (3) voluntary disclosure, and (4) inadvertent waiver (sometimes).
§ 38.13 Procedural Issues [567]
[A] Burden of Proof
Burden of persuasion rests with the person asserting the privilege.
[B] In Camera Hearings
In United States v. Zolin, 491 U.S. 554 (1989), the Supreme Court held that the applicability of the crime-fraud exception can be resolved by an in camera inspection of the allegedly privileged material.
§ 38.14 Work Product Privilege [567-68]
The attorney-client privilege should be distinguished from the work-product doctrine, a qualified privilege recognized in both the Civil and Criminal Rules. Fed. R. Civ. P. 26(b)(3); Fed. R. Crim. P.16(a)(2) (prosecution); Fed. R. Crim. P. 16(b)(2) (defense counsel). The work-product doctrine generally protects a broader range of materials than does the attorney-client privilege. The former protects materials prepared in anticipation of trial, while the latter is limited to communications. However, the protection for work product is not absolute; it may be overcome if the party seeking discovery shows that it has a "substantial need" for the materials and is unable without "undue hardship" to obtain the substantial equivalent of the materials sought by other means.
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Chapter
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