Attorney Client Privalge

Question 1

Proposed R503: Attny-Client Privilege: general rule

Answer 1

(b) general rule: a client has privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client
(c) who may claim privilege: the privilege may be claimed by the client, his guardian/conservator, the personal rep of a deceased client, or the successor, trustee, or similar rep of a corporation or other organization whether or not in existence

Question 2

roposed R503: Attny-Client Privilege: Exception

Answer 2

(d) exceptions: no privilege can be claimed when…

(1) the services of the lawyer were sought/obtained to enable/aid anyone to commit/plan to commit what the client knew/reasonably should have known to be a crime or fraud
(2) it relates to a communication relevant to an issue between parties who claim through the same deceased client
(3) the communication is relevant to an issue of breach of duty by the lawyer to his client or vice versa
(4) the communication is relevant to an issue concerning an attested document to which the lawyer is an attested witness
(5) the communication is relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients
(6) it has been waived by the client (see BELOW)
(7) there is a claim of legal malpractice

Question 3

waiver

Answer 3

• can occur accidentally if client discloses to a non-privileged 3p
• an also occur if client puts it at issue in a case
• you can only recall accidental submission of privileged docs sent to the other side if you take reasonable cautions to prevent it and prompt action to recover it
• **waiver can be transferred to a lawyer expressly, impliedly, or apparently (but ultimately must have one of those layers of consent)
• failure of lawyer to object during trial is a “waiver by inaction,” which is not appealable
• turning over arguably privileged info in response to a court order does not waive the issue on appeal

Question 4

Work Product (FRCP 26(b))

Answer 4

• it is the compilation and selection of work product info that is protected, not the underlying facts themselves
• the attny’s value added (his mental filtering and sorting of the facts) must be protected
• primary purpose approach (MAJORITY)
  * you the primary motivation for preparing the putative work product must be to assist in preparing for possible litigation
  * motive is shown by how the doc is labeled, whether a lawyer participated in the preparation, whether the document comments on litigation, and whether it has an ordinary business purpose (regulatory)

Question 5

Expert Work Product

R26(a)(2) and 26(b)(4)

Answer 5

1) discovery from testifying experts
- governed by special discovery provisions to level the playing field btw them and their cross examiners
2) discovery from non-testifying experts
- experts who are merely consulted about the case and had no advantage over another expert (i.e. a better opportunity to view the scene of the accident)
- discovery by opposing counsel not required because this would be considered “borrowing your adversary’s wits” on his dime
* *unless your opponent’s expert is the only one out there (or exceptional circumstances like he got to the scene to see it before, and now it is no longer there)