Chapter 4
THE ATTORNEY CLIENT PRIVILEGE (ACP) &
THE WORK PRODUCT DOCTRINE
A. CONFID’Y & ACP COMPARED
Ch. 4 Attorney-Client Privilege
A. Compare Confidentiality & ACP
Ethical duty of
confidentiality
A
C
P
A. & B. Ethical Duty & Privilege Compared;
Elements of ACP pp. 229-43
• Testimonial vs. ethical duty
– Litigation context v. general ethical duty
• Narrower scope
• Economic value to lawyers; competitive advantage
• Policy: undercuts on truth-seeking function of courts
– Invoked when opponent wants something
relevant & harmful to your side
• Source: federal & state common law;
sometimes statutory
B. Elements
pp. 236-42
1. Communication (must be communicative
element)
2. Between privileged persons & their agents;
(NO nonprivileged persons present or told);
Goes bothways (>---<)
3. Made in confidence (in private)
4. For purpose of seeking legal assistance
(unprivileged if for business or other purpose,)
Documents
p. 241
1. C c/n park damaging docs w/ L to avoid
other’s access, i.e., privilege doesn’t shield
underlying facts.
2. But if C prepares doc for purpose of
communicating w/ L (log on what
happened), w/in ACP.
C. Client Identity
pp. 242-43
• Usually not privileged, except:
• L can be compelled to reveal who represents if C engaged
in ongoing wrong (deposition, subpoena, grand jury, etc.)
Jenkins & Gilchrist (Dallas ‘07); Sidley & Austin (Chicago ‘04)(firms
compelled to provide IRS w/ list of clients who bought sham tax
shelters) p. 243, fns. 29-31
• When disclosure of C identity would incriminate in the
criminal activity for which C sought legal advice
Baird v. Koerner (9th ‘60)(anonymous tax payment); Dietz v. Doe
(Wash. Ct. App. ‘97)(civil) & similar FL. (crim.)(hit & run, C
consulted L b/c road dark, uncertain; likely privileged) p. 242, n. 28
D. Waiver
pp. 245-47
1. ACP belongs to C (or successor) authorized to direct L whether
to waive (express & apparent authority) e.g. OK Girl Scouts,
Weintraub
2. Rstmt. §78 (3) Fail to timely assert when privileged info.
sought & provided (W by inaction)
3. Inadvertent disclosure: huge issue, especially in e-discovery
In re Christus Spohn Hosp., 222 S.W. 3d 434 (Tex., 2005)
(under facts, no “snap-back” of inadvertently produced
document) RPC 5.3 See also, Granada. Synonym “clawback”
Rsmt. §79 cmt. h. . . . Waiver does not result if the client or
other disclosing person took precautions reasonable in the
circumstances to guard against such disclosure. (clawback
possible if reasonable precautions taken before, promptly
reassert.)
D. Waiver
pp. 245-47
• When C puts privileged communication into
issue (malpractice, ineffective assistance, fee
dispute, discipline)
• Usually, disclosing portion of single
communication waives the balance of that
communication as it relates to the subject
matter of partial waiver.
D. Waiver
pp. 247
Compliance with Court Order to produce
communication claimed as privileged.
-test ruling, request reconsideration, to avoid being
held in contempt. Maness v. Meyers, 95 S.Ct. 584
(1975)(5th Amend. context)
-Text p. 247: if turnover pursuant to ct order, does not
waive issue for purposes of appeal from final order
**Mohawk Industries v. Carpenter, 130 S.Ct. 599 (2009)
(magistrate & trial court disclosure orders rejecting ACP
NOT appealable interlocutory order)
E. Crime-fraud exception (CFE)
pp. 249-56
§ 82. Client Crime or Fraud
The attorney-client privilege does not apply to a
communication occurring when a client:
(a) consults a lawyer for the purpose, later
accomplished, of obtaining assistance to engage in
a crime or fraud or aiding a third person to do so, or
(b) regardless of the client’s purpose at the time of
consultation, uses the lawyer’s advice or other
services to engage in or assist a crime or fraud.
***Purcell v. Dist. Atty, 676 N.E.2d 436
(Mass. 1997) p. 251
Why did C consult L? What did he tell L?
L called police, imminent danger.
Ct: no breach of ethical duty, but D.A. couldn’t
compel L to testify.
Reasonable balance?
Skipped, not assigned
Tobacco litigation
pp. 255-56
• Companies channeled medical research
through legal departments, Office of General
Counsel
• Released those saying positive health effects;
kept secret those showing adverse effects
• Several cases tested privilege, Congressional
hearings. Courts: either unprivileged or CFE.
Prob. 4-2 The Fatal Bus Crash pp. 253-56
CFE procedure, U.S. v. Zolin (S.Ct. 1989) p. 255, n. 56
Travel insurance; carrier denied coverage claiming
death caused by withdrawn life support, not bus
crash.
• π sued carrier for policy limit + tort (intentional
infliction of emotional distress)
• π sought discovery of all written communications
between ΔL & carrier; Δ: ACP
• Now: burden on party seeking to show comes
w/in exception, π claimed CFE.
• Ct, after in camera review, ordered production.
In re Grand Jury, 162 F.3d 670 (D.C.
1998)
Monica Lewinsky > Charles Ogletree (affidavit to
avoid testifying in Ark. Sexual harassment case)
F. Death of Client pp. 256-61
Swidler & Berlin v. U.S. (S.Ct. ‘98)
“travelgate” investigation. Vince Foster Deputy White House
Counsel met w/ private L, then committed suicide. Grand jury
subpoenaed L’s notes
S.Ct. (6-3) held, under federal common law, privilege
survives C’s death. **O’Connor dissent (ACP shouldn’t be
absolute bar), see, e.g.,
In re Miller II, 595 S.E. 2d 120 (NC 2004)(love triangle, H
poisoned. Lover consults L, commits suicide; wife (W)
suspect. L subpoenaed, asserts ACP. Held, information Lover
shared w/ L re third party (T/P) involvement not privileged
where d/n implicate Lover)
H. Privilege for Corporations pp. 265-71
Upjohn v. U.S. (S.Ct. ‘81) fed. C.l.
• Internal investigation of foreign bribes, gave SEC
preliminary report that “questionable payments.”
• IRS summons: HANDOVER ALL questionnaires, memos,
interview notes.
• D. Ct. ordered production, 6th Cir. aff’d (narrow control
group)
Issue (I): scope of privilege (ALL –ees, only control group, or
uncertain few)?
• Cost/benefit analysis?
new standard “subject matter of communication” p. 265 & n. 80
Okla. Ev. Code: control group test p. 270, n. 91
Scope of ACP for Law Firm In-House
Counsel
Rstmt. §70 Who are privileged persons?
Corporations (Corps.) artificial entities, can only act
through human agents.
WHO is the Client: importance of correct
identifying See, RPC 1.13 entity as C, runs
throughout Chapters 5-9 on Conflicts of Interest
(COI)
H. Privilege for Corporations
pp. 276-77
Prob. 4-4 Worldwide Bribery
Political battle since 2001 between DOJ, feds & ABA (w/
participation of Chamber of Commerce & ACLU)
“erosion of ACP,” whether corp. gets “cooperation
credits” in plea bargaining if d/n waive ACP.
N.B. Congress may have changed cooperation credits.
UNCERTAIN future.
Prob. 4-4 Worldwide Bribery, DOJ armtwisting corps. to waive ACP
276-77
pp. 271-72,
Advise Pres. Patel. WAIVE privilege, possibly
subjecting her & others to criminal
prosecution?
1. Give both summaries & bribery records.
2. Give only records detailing bribery, NOT
interview summaries.
3. Give nothing, assert ACP, play hardball.
4. Other alternatives?
St. Simons Waterfront, LLC v. Hunter,
Maclean, et al., 746 S.E.2d 98 (GA 7/13)
Exam question shows high drama; grading sheet
as example of my grading style.
GA Supreme Court respected.
1. Refused to “engraft” RPC into common law of
evidence; opinion discussed how ACP should
be interpreted same as other privilege law.
2. Remanded for factual findings.
Compare, RFF Family Partnership v. Burns
& Levinson, LLP, 991 N.E.2d 1066 (7/13)
Facts: developed. Allowed interlocutory appeal
(state procedural law); S.Ct. assumed juris.
Over intermediate app. Ct.
***¶ 1, p. 1.
I: whether confid’l communications between
firm Ls & person designated as in-house counsel
re LM by current C are protected by ACP?
RFF Family Partnership v. Burns &
Levinson, LLP, 991 N.E.2d 1066 (7/13)
H: yes, provided 1) firm designated 1 or more
Ls in firm to serve as in-house counsel; 2) such
Ls have done NOTHING on same/similar client
matters; 3) C NOT BILLED for such Ls work; 4)
communications made in confidence & in fact
kept in confidence.
Disposition: affirm decision below, upholding
ACP.
Q: What did Burns & Levinson (B&L)
do RIGHT?
1. Upon receiving Prince Lobel’s (PL) threat to
sue got RFF’s principal to confirm in writing
that PL not authorized. See RPC 1.2(a).
1. Promptly asserted ACP when noticed for
deposition, moved for protective order,
sought interlocutory review. Consistent
Key Language in opinion
“Uncharted jurisprudential waters” p. 6, left col.
“Uncertain privilege . . . little better than no
privilege at all.” Upjohn p. 6, bottom right col.
*** Where law firm designates in-house counsel
on ethical, regulatory & risk management issues . .
. crucial to reputation & financial success . . .
serves same purpose as [other artificial entities]:
guarantees confid’y . . . to ensure that all
employees provide information needed to obtain
sound legal advice.” p. 8, left col.
Rejects asserted EXCEPTIONS to ACP
• When firm acting as fiduciary (overbroad,
exception would swallow the rule) pp. 11-13
• Current C exception pp.13-17, conclusion p. 17
***willing to incorporate RPC in analysis of ACP;
considers RPC 1.6, 1.7, 1.10, 5.1 in logical ways.
Law, as in architecture, form should follow function . .
. Cs get better representation when Ls can safely confer
w/ in-house counsel without need to drop C, 1.10
(imputed DQ) n/a here; Current C exception yields
dysfunctional result. Pp. 16-17 benefits to C, Increased
firm compliance w/ ethical R’s. See qualifications.