Chapter 4 The Attorney Client Privilege ( ACP ) & The Work product doctrine. A. Confid’y & ACP Compared. Ch. 4 Attorney-Client Privilege. Compare Confidentiality & ACP. Ethical duty of confidentiality. ACP. A. & B. Ethical Duty & Privilege Compared; Elements of ACP pp. 229-43.
A. Confid’y & ACP Compared
Compare Confidentiality & ACP
Ethical duty of confidentiality
(unprivileged if for business or other purpose,)
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
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
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 ChristusSpohn 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.)
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 ACPNOT appealable interlocutory order)
§ 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.
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.
Travel insurance; carrier denied coverage claiming death caused by withdrawn life support, not bus crash.
Monica Lewinsky > Charles Ogletree (affidavit to
avoid testifying in Ark. Sexual harassment case)
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)
Upjohn v. U.S. (S.Ct. ‘81) fed. C.l.
Issue (I): scope of privilege (ALL –ees, only control group, or uncertain few)?
new standard “subject matter of communication”p. 265 & n. 80
Okla. Ev. Code:control group testp. 270, n. 91
Rstmt. §70 Who are privileged persons?
Corporations (Corps.) artificial entities, can only act through human agents.
WHO is the Client: importance of correct identifyingSee, RPC 1.13 entity as C, runs throughout Chapters 5-9 on Conflicts of Interest (COI)
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.
Advise Pres. Patel. WAIVE privilege, possibly subjecting her & others to criminal prosecution?
Exam question shows high drama; grading sheet as example of my grading style.
GA Supreme Court respected.
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?
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.
“Uncharted jurisprudential waters” p. 6, left col.
“Uncertain privilege . . . little better than no privilege at all.” Upjohnp. 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.
***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.