Attorney/Client Privilege

Question 1

Elements for privilege under Restatement 68

Answer 1

1. a communication
2. made between privileged persons
3. in confidence
4. for the purpose of obtaining/providing legal assistance

Question 2

If client is an entity, who is covered by attorney/client privilege? (3 tests)

Answer 2

1. Control group - those that run the company
2. Upjohn - communications within scope of employee’s corporate duties OR communications made by corporate counsel
3. Restatement 73 (broadest) - agent of organization (employee) + concerns legal matter

Question 3

M.R. 4.2 - Represented Party

Answer 3

• A represented party

- Prohibits communication when; subject of interest, knows they are represented, no consent from other lawyer

Question 4

Communications - informally interview employee of entity

Answer 4

FRE - admissible, considered non-hearsay

CEC - inadmissible, no hearsay exception

Question 5

M.R. 4.3 - Unrepresented Party

Answer 5

Unrepresented party - opposite of M.R. 4.2 (represented party)

1. Cannot state/imply disinterest
2. Make reasonable efforts to correct understanding with regards to attorney’s role
3. Not allowed to give legal advice