Attorney-Client Privilege and Its Exceptions (Crime-Fraud and The Work Product Doctrine) - June 15 Flashcards
What does attorney-client privilege protect? (Lerman)
The attorney-client privilege protects only “communications” between lawyer and client, including face-to-face conversations, telephone calls, memoranda, e-mails, text messages, or any other modes of exchanging information. The privilege protects communications from the client to the lawyer and those from the lawyer to the client. (470)
Does the a-c privilege provide a shield against disclosure of the underlying facts? (Lerman)
No. The privilege provides a shield only against disclosure of the communication itself, not against disclosure of the underlying facts that were communicated. (470)
Does the mere presence of a lawyer during a non privileged conversation turn the conversation into one that is privileged? (Lerman)
No. The mere presence of a lawyer during a non-privileged conversation (such as where the communication is not for the purpose of giving or receiving legal advice) does not turn the conversation into one that is privileged. (470)
Does the a-c privilege protect communications with a lawyer’s colleagues and staff? (Lerman)
Yes. Most lawyers work closely with other lawyers, secretaries, paralegals, and investigators. Communications with these colleagues and agents of a lawyer are privileged. Also, a lawyer’s or secretary’s notes of a privileged conversation are privileged, just as if the client had made her own notes and brought them to the lawyer in the form
of a memorandum. (471)
Does the attorney-client privilege cover communications with anyone other than lawyers, clients, and agents of the lawyer? (Lerman)
Yes in the case of interpreters, minors with parents, and legal guardians. (471)
Does the a-c privilege protect a client that has talked to the lawyer but has not yet hired her? (Lerman)
This communication with a prospective lawyer would be privileged. Otherwise, a client might
not be able to share enough information for the lawyer and client to decide whether to move forward with the representation. (472)
If two lawyers are representing a client, would their conversations about the case be protected by the privilege? (Lerman)
In general, yes. Privilege extends to discussing client communications with other lawyers in the lawyer’s firm. In addition, lawyers at two different firms who are representing two parties with common interests, such as co-defendants, can discuss a joint strategy without waiving the privilege. Recently, some courts have extended the privilege to cover such communications even when a lawsuit is not pending or threatened (such as premerger talks between lawyers for two companies), provided that the purpose of the communication is to further a common legal interest of the clients and not primarily to discuss business matters. (472)
How can a communication be privileged? (Lerman)
For a communication to be privileged, the client must reasonably believe that it is confidential. (472)
Are conversations that occur when strangers are also present considered privileged? (Lerman)
No. (472)
Suppose a school or employer has an announced policy that allows it to monitor e-mail sent through its server. If a student or employee e-mails a lawyer using that server, is the communication privileged? (Lerman)
Probably no because the person has been warned. (473)
Are prisoners entitled to have privileged e-mail communications with their lawyers? (Lerman)
Most courts have said that prison officials are allowed to monitor all electronic communications between prisoners and other persons, including their lawyers, and may use these communications against the prisoners in further proceedings. The rationale for this exception is that prisoners “consent” to inspection of their e-mail as a condition of being able to use this method of communication, and that prisoners can communicate with their lawyers privately by mail, telephone, and in person. (473)
If a client tells a lawyer some factual information during a privileged conversation, can the client claim privilege to avoid testifying about those facts? (Lerman)
No. The communication with the lawyer is privileged, but the underlying facts are not. The facts might be protected by a different privilege, such as the privilege against self-incrimination. But if other privileges don’t apply and the client is required to testify about the facts, she must disclose them. (476)
If a client gives a lawyer a document (say, a copy of a contract) related to the representation, does the document thereby become a privileged communication? (Lerman)
No. The document is a piece of evidence. The lawyer or the client could be compelled to provide a copy of the document to an adverse party. Lawyers are not allowed to hide evidence for clients. (477)
Can a client waive the privilege inadvertently? (Lerman)
Yes. A client may reveal privileged information in a casual conversation with a non-privileged person. Sometimes this results in an unintentional waiver of privilege. (482)
What happens if a client relies on privileged communications while suing her lawyer? (Lerman)
If a client puts a privileged communication into issue in a case, the client waives privilege. Therefore, if a client sues a lawyer for malpractice and asserts that the lawyer gave her incorrect advice, the lawyer may reveal the details of the relevant conversations for the purpose of self-defense. (483)
When can privilege be waived by the client’s lawyer? (Lerman)
Privilege can be waived by the client’s lawyer if the client has authorized the waiver. (483)
How can a client authorize a lawyer to waive privilege? (Lerman)
The client could authorize the lawyer to waive privilege by telling the lawyer that he may do so (express authority), by giving the lawyer directions that imply that the lawyer may waive (implied authority), or by making a statement to a third party that the lawyer has the authority to waive privilege (apparent authority) (483)
If a lawyer deliberately reveals privileged information, does this effect waiver of privilege? (Lerman)
No. If the lawyer deliberately reveals the information without having express, implied, or apparent authority, the revelation does not effect a waiver of privilege. (483)
Can a lawyer waive privilege by failing to invoke it during a trial? (Lerman)
Yes. (484)
Is the privilege lost if a lawyer represents two clients jointly? (Lerman)
No. If two clients hire a lawyer jointly, they are considered common clients with a common privilege. (484)
Can a client waive privilege by disclosing only part of a communication? (Lerman)
Yes. A judge might find that the disclosure waived the privilege as to the other parts of the communication that relate to the subject matter of the portion that was disclosed. The reason for this “subject matter” test is to prevent the client from offering misleading testimony by revealing only a half-truth. (485)
What is the attorney-client privilege? (Q)
The attorney-client privilege is a common-law evidentiary rule used to exclude from evidence some communications between lawyers and clients. A person may not be compelled to reveal the content of a communication that falls under the privilege. The privilege is intended to encourage full and candid communications between lawyers and their clients.
What are the four elements that determine whether the attorney-client privilege applies to a communication? (Q)
The attorney-client privilege applies to (1) a communication (2) between privileged persons, (3) made in confidence, and (4) for the purpose of obtaining or providing legal assistance
What forms of communication are protected by the attorney-client privilege? (Q)
The attorney-client privilege protects any form of communication that conveys privileged information. Thus, oral, written, and electronic communications may be subject to the privilege, as may nonverbal communications.
The privilege applies not only to the original communication, but also to any other communication or record that would reveal the original communication.
If a communication is subject to the attorney-client privilege, are the facts contained in the communication also privileged? (Q)
No. The attorney-client privilege extends to communications, but not to the facts contained within privileged communications. Thus, if the facts contained in a communication may properly be discovered or revealed through sources other than a privileged communication, then the facts themselves are subject to disclosure.
For purposes of the attorney-client privilege, who are privileged persons? (Q)
For purposes of the attorney-client privilege, the category of privileged persons includes:
the client (including a prospective client);
the client’s lawyer;
agents of the client or lawyer who facilitate communications between them (e.g., an assistant or a translator); and
agents of the lawyer who facilitate the representation (e.g., paralegals, law office staff, or independent contractors such as accountants or physicians, who are hired by the lawyer to assist the lawyer in providing legal services to the client).
Does the attorney-client privilege apply to a communication that is intended to reach a privileged person but does not actually do so? (Q)
Yes. The attorney-client privilege applies to a communication that is intended to reach a privileged person but does not actually do so, e.g., if the communication is intercepted or destroyed in transit.
For purposes of the attorney-client privilege, what is the definition of a communication made in confidence? (Q)
For purposes of the attorney-client privilege, a communication is made in confidence if, at the time of the communication, the person making the communication reasonably believes that only a privileged person will learn the contents of the communication. The matter being communicated does not need to be a secret to qualify as a confidential communication.
In general, does the attorney-client privilege apply to a communication between privileged persons if a nonprivileged person is present? (Q)
No. In general, if a nonprivileged person is present during a communication between privileged persons, then the attorney-client privilege will not apply. However, if the privileged persons took reasonable steps to maintain confidentiality, and another individual eavesdrops on the conversation without their knowledge, the privilege remains intact.
In addition, the presence of another person during the communication who is subject to a privilege other than the attorney-client privilege (e.g., the spousal privilege) does not destroy the attorney-client privilege as to the communication.
For purposes of the attorney-client privilege, under what circumstances is a communication made for the purpose of obtaining or providing legal assistance? (Q)
For purposes of the attorney-client privilege, a communication is made for the purpose of obtaining or providing legal assistance if:
the communication is made by, to, on behalf of, or to assist a lawyer or someone who the client or prospective client reasonably believes is a lawyer; and
the communication is made for the purpose of obtaining or providing legal services.
A lawyer’s assistance and services are considered to be legal in nature if the lawyer’s professional skill and training are valuable in the matter (e.g., giving legal advice or counseling, preparing legal documents, assisting in litigation, or providing other assistance usually given by lawyers).
If a client is a corporation or other organization, what requirements must be met for the attorney-client privilege to apply? (Q)
If a client is a corporation or other organization, the attorney-client privilege applies if the communication:
meets the normal conditions for the attorney-client privilege,
is between a privileged person and an agent of the organization,
involves a legal matter that is of interest to the organization, and
is disclosed only to privileged persons or to other agents of the organization who have a reasonable need to know about the communication to act on behalf of the organization.
In general, if the attorney-client privilege is not waived, how long does the privilege last? (Q)
In general, unless the attorney-client privilege is waived, the privilege lasts indefinitely. Thus, the privilege continues after the representation has ended and even after the death of the client.
Is the client the holder of the attorney-client privilege? (Q)
Yes. The client, not the lawyer, holds the attorney-client privilege. Thus, the client has the right to assert the privilege if an attempt is made to obtain privileged information or introduce privileged information into evidence. The client may also choose to waive the privilege and provide the privileged information, regardless of the wishes of the lawyer.
In addition to the client, a personal representative of an incompetent or deceased client, or a person who succeeds to a client’s interest, may invoke or waive the privilege, either personally or through counsel or another authorized agent.
Are there circumstances in which a lawyer or other privileged person must assert the attorney-client privilege on the client’s behalf? (Q)
Yes. A lawyer, a lawyer’s agent, or a client’s agent must invoke the attorney-client privilege if it appears reasonably appropriate to do so. This requirement does not apply if the client has waived the privilege or if the client has authorized the lawyer or agent to waive the privilege.
May the attorney-client privilege be waived either by the client or by the lawyer on the client’s behalf? (Q)
Yes. The attorney-client privilege may be waived by the client, the client’s lawyer, or another agent acting on the client’s behalf if one of these actors:
voluntarily discloses a privileged communication while acting with actual or apparent authority to do so;
disclaims the privilege and another person reasonably relies on the disclaimer to that person’s detriment, or there are other reasons to prevent revocation of the disclaimer; or
in a court proceeding, fails to object properly to an attempt to obtain or introduce privileged material.
A lawyer generally may not waive the privilege over the client’s objections.
In general, is the attorney-client privilege waived if a privileged communication is inadvertently disclosed to someone who is not a privileged person? (Q)
No. In general, the attorney-client privilege is not waived if the communication is inadvertently disclosed to a nonprivileged person. However, once the client knows or reasonably should know that the communication was inadvertently disclosed, the client must take prompt, reasonable steps to recover the communication and reassert the privilege. A failure to do so may be deemed a waiver of the privilege as to that communication.
Does a client waive the attorney-client privilege by placing a privileged communication in issue in a court proceeding? (Q)
Yes. A client waives the attorney-client privilege by placing a privileged communication in issue in a court proceeding. More specifically, the client waives the privilege as to any relevant communications if:
the client asserts, as to a material issue, that the lawyer’s advice was relevant to the client’s conduct; or
the client asserts that the lawyer rendered ineffective or wrongful assistance to the client.
Can the protections of the attorney-client privilege be waived if a privileged communication is used to prepare or assist a witness in a court proceeding? (Q)
Yes. The attorney-client privilege can be waived if a privileged communication is used to prepare or assist a witness in a court proceeding. More specifically, the privilege is waived if:
the witness uses a privileged communication to assist the witness while testifying; or
a privileged communication is used to prepare a witness to testify, and the court finds that justice requires disclosure of the communication.
What is the crime-fraud exception to the attorney-client privilege? (Q)
The crime-fraud exception to the attorney-client privilege provides that a communication is not privileged if:
the client communicates with the lawyer with the purpose of committing or obtaining assistance in committing a crime or a fraud, and the client accomplishes that purpose; or
the client uses the communication to commit or assist in committing a crime or fraud, regardless of the client’s intent at the time of the communication and regardless of whether the client understands that the conduct is criminal or fraudulent.
Does the crime-fraud exception to the attorney-client privilege apply if the client communicates with the lawyer with the purpose of obtaining assistance in committing crime or fraud but then does not actually commit the crime or fraud? (Q)
No. The crime-fraud exception does not apply if the client never commits a crime or a fraud, regardless of the client’s intent at the time of the communication. The purpose of this rule is to enable clients to freely inquire about the legality of a proposed course of action, without penalty if they are then deterred from wrongful conduct.
May a court conduct an in camera examination of allegedly privileged attorney-client communications to determine whether they fall within the crime-fraud exception to the attorney-client privilege? (Q)
Yes. A court may conduct an in camera examination of allegedly privileged attorney-client communications to determine whether they fall within the crime-fraud exception to the attorney-client privilege, which invalidates the privilege for any communications with the lawyer that were in furtherance of a crime or fraud. A party invoking the crime-fraud exception must show a factual basis to support a reasonable belief that the court’s review of the privileged material would reveal evidence establishing that the exception applies. If the party makes this threshold showing, only then may the court exercise its discretion to review the otherwise-privileged material in camera.
Does the attorney-client privilege always apply to matters such as the existence of a client-lawyer relationship, the identity of a lawyer’s clients, and the amount or source of the lawyer’s fee payments? (Q)
No. The attorney-client privilege does not invariably apply to matters such as the existence of a client-lawyer relationship, the identity of a lawyer’s clients, and the amount or source of the lawyer’s fee payments. Some courts will allow disclosure of these and similar facts if they do not expose the content of attorney-client communications.
Does the law recognize exceptions to the attorney-client privilege for fee disputes and for defending charges of attorney misconduct? (Q)
Yes. The attorney-client privilege does not apply to a communication that is both relevant and reasonably necessary for the lawyer to use:
to resolve a dispute regarding payment that the lawyer reasonably alleges to be owed by the client to the lawyer or
to defend the lawyer, or the lawyer’s agent or associate, against an allegation made by anyone that the lawyer, agent, or associate committed misconduct during the representation.
A lawyer represented a client regarding a criminal charge of driving while intoxicated. The client brought his friend with him when he went to meet with the lawyer in the lawyer’s office. The friend was not in the meeting to facilitate communications between the client and the lawyer. During the meeting, with his friend present, the client told the lawyer that he had 10 beers immediately prior to his stop and arrest for driving while intoxicated.
May the client properly invoke the attorney-client privilege over this conversation? (Q)
No. The client may not assert the attorney-client privilege. The attorney-client privilege protects from disclosure confidential communications made between privileged persons for the purpose of obtaining or providing legal services. Privileged persons include the client, the client’s lawyer, agents of the client or lawyer who facilitate communications between them (e.g., an assistant or translator), and agents of the lawyer who facilitate the representation (e.g., paralegals). If the communication does not occur solely between privileged persons, it is not in confidence and does not qualify for the attorney-client privilege.
Here, the client’s friend was not a privileged person, so the friend’s presence in the meeting meant that the conversation between the client and the lawyer was not in confidence. Thus, the client may not assert the attorney-client privilege over the conversation.
A lawyer represented a client in tax matters. The lawyer took the client out for lunch in a crowded restaurant. While at lunch, the client and lawyer had a conversation about the tax ramifications of certain courses of conduct. The client was subsequently involved in a dispute with the Internal Revenue Service (IRS).
Will the client likely be able to assert the attorney-client privilege to prevent the IRS from obtaining information regarding the lunchtime conversation? (Q)
No. The client likely will not be able to assert the attorney-client privilege over the conversation. The privilege protects from disclosure confidential communications made between privileged persons (i.e., the client, the client’s lawyer, and certain agents of the client or lawyer) for the purpose of obtaining or providing legal services. For the privilege to apply, the communicating person must reasonably believe that no one except a privileged person will learn the communication’s contents.
Here, the client and lawyer discussed legal matters in a crowded restaurant where other patrons could overhear, making it likely that a nonprivileged person would have access to the information. Thus, because the client could not reasonably believe that nobody except a privileged person would learn the contents of the communication, the client likely will not be able to assert the privilege.
What is attorney work product? (Q)
Attorney work product encompasses (1) documents or other tangible things, or their unwritten equivalents, (2) prepared in anticipation of litigation or for trial (3) by a lawyer. Under the work-product doctrine, attorney work product is protected from discovery or disclosure in litigation or similar legal proceedings.
What is the difference between opinion work product and ordinary work product? (Q)
The difference between opinion work product and ordinary work product is that opinion work product consists of a lawyer’s opinions and mental impressions formed in anticipation of litigation or for trial, while ordinary work product includes all other forms of work product. Opinion work product encompasses not only a lawyer’s direct statement of opinion or mental impression, but also more indirect revelations of a lawyer’s thought processes or legal opinions, such as a lawyer’s index or arrangement of client documents that was prepared in anticipation of litigation.
In general, is work product protected from discovery and other forms of disclosure in litigation or other legal proceedings? (Q)
Yes. The work-product doctrine provides that work product is generally protected from discovery and other forms of disclosure in litigation or other legal proceedings. In general, one party may obtain another party’s ordinary work product only if the first party can establish that it has a substantial need for the materials to prepare its case and cannot obtain their substantial equivalent without undue hardship.
In general, may one party obtain another party’s opinion work product only in extraordinary circumstances or if the opposing party has demonstrated a compelling need for its discovery? (Q)
Yes. In general, one party may obtain another party’s opinion work product only in extraordinary circumstances or if the opposing party has demonstrated a compelling need for its discovery. The courts have not clearly defined extraordinary circumstances in this context. However, the phrase is apparently meant to indicate that opinion work product is more highly protected than ordinary work product, though not as highly protected as privileged attorney-client communications.
May the protections of the work-product doctrine be waived by either the client or the lawyer? (Q)
Yes. The protections of the work-product doctrine may be waived by the client, the client’s lawyer, or another agent of the client if one of these actors:
agrees to waive the protections;
disclaims the protections and another person reasonably relies on the disclaimer to that person’s detriment, or there are other reasons to prevent revocation of the disclaimer;
in a court proceeding, fails to object properly to an attempt to obtain or introduce evidence of work product; or
reveals the material to third parties in a way that makes it likely that an adversary in litigation will obtain it.
Does the work-product doctrine protect the facts on which the work product is based? (Q)
No. Like the attorney-client privilege, the work-product doctrine does not apply to the facts on which the work product is based. Thus, if those facts are otherwise discoverable or unprotected from disclosure, they may be revealed or obtained by an opposing party without violating the work-product doctrine.
What is the crime-fraud exception to the work-product doctrine? (Q)
The crime-fraud exception to the work-product doctrine provides that the doctrine does not apply to materials prepared if:
the client consults the lawyer with the purpose of committing or obtaining assistance in committing a crime or a fraud, and the client accomplishes that purpose, or
the client uses the materials to commit or assist in committing a crime or fraud.
Does a client waive the protections of the work-product doctrine by placing the work product in issue in a court proceeding? (Q)
Yes. A client waives the protections of the work-product doctrine by placing the work product in issue in a court proceeding. More specifically, the client waives the protections as to any relevant material if:
the client asserts, as to a material issue, that the lawyer’s advice was relevant to the client’s conduct; or
the client asserts that the lawyer rendered ineffective or wrongful assistance to the client.
Can the protections of the work-product doctrine be waived if the work product is used to prepare or assist a witness in a court proceeding? (Q)
Yes. the protections of the work-product doctrine can be waived if the work product is used to prepare or assist a witness in a court proceeding. More specifically, the protections are waived as to any relevant material if:
the witness uses recorded work product to assist the witness while testifying; or
recorded work product is used to prepare a witness to testify, and the court finds that justice requires disclosure of the work product.
A lawyer was representing a client in litigation over water rights. The lawyer prepared a memorandum for the client that outlined the lawyer’s opinion of the strengths and weaknesses of the various claims the client could bring against the opposing party. The opposing party issued a broad discovery request asking for any evidence or information in the client’s possession regarding the water-rights litigation.
Must the client produce the lawyer’s memorandum? (Q)
No. The client is not required to produce the lawyer’s memorandum, because the memorandum is the lawyer’s opinion work product. Opinion work product consists of a lawyer’s legal theories, opinions, mental impressions, and similar thoughts in anticipation of litigation. Opinion work product is immune from discovery or other compelled disclosure unless immunity is waived, an exception applies (e.g., the crime-fraud exception), or extraordinary circumstances justify disclosure.
Here, the lawyer’s memorandum was opinion work product: it was prepared in advance of litigation and contained the lawyer’s legal theories and opinions about the merits of various potential claims. The client has not waived immunity, and there is no indication that any exceptions applied or that there were extraordinary circumstances justifying disclosure. Thus, the client is not required to produce the memorandum.
The attorney-client privilege applies to who? (B)
Confidential communications between the attorney and client and their respective agents
Which of the following apply to discussions with someone who comes in to talk about hiring the lawyer but decides not to do so? (B)
The attorney-client privilege only
The duty of confidentiality only
Both the attorney-client privilege and the duty of confidentiality - correct
Neither the attorney-client privilege nor the duty of confidentiality
Which of the following survive the client’s death? (B)
The attorney-client privilege only
The duty of confidentiality only
Both the attorney-client privilege and the duty of confidentiality - correct
Neither the attorney-client privilege nor the duty of confidentiality
Lawyer Winnie receives an e-mail from a witness in a case. The e-mail contains details of the witness’s private conversation with Winnie’s client.
The e-mail is protected by what? (B)
Winnie’s duty of confidentiality only. There is not a-c privilege because the witness is not the client.
Hank visited his lawyer, Gemma, and they discussed a sensitive legal matter in Gemma’s office. They reasonably believed that no one else was in the office. However, Paul was hiding behind a curtain and heard everything.
Can Hank assert the attorney-client privilege to prevent Paul from testifying about the conversation? (B)
Yes
Valerie meets with her attorney, Anissa, to discuss a tax matter. Valerie’s accountant was present to help explain Valerie’s finances, Valerie’s friend was present because they had dinner plans after the meeting, and Anissa’s secretary was present to take notes.
The presence of which of the following people will defeat the attorney-client privilege? Select all that apply. (B)
The accountant
The secretary
The friend - correct
None, because all parties are associated with either Valerie or Anissa
What is USUALLY NOT privileged? Select all that apply. (B)
An authenticated e-mail exchange between a lawyer and client
The client’s admission to the lawyer that he committed a crime
The identity of the client - correct
Information about the fee arrangement - correct
Angela, a prospective client, visits John’s office and says, “I want advice on how to embezzle money and get away with it.” John advises Angela not to carry out her plan and they do not move forward with an attorney-client relationship. Angela embezzles money from her employer, and John is subpoenaed to testify at Angela’s criminal trial.
Is John’s conversation with Angela privileged? (B)
No. The attorney-client privilege applies to consultations with prospective clients, but the attorney-client privilege doesn’t apply if the client is seeking the attorney’s services to engage in or assist a future crime or fraud.
Jason is charged with bank robbery. Jason meets with his attorney, Ben, and says, “I’m going to be straight with you. I did it.”
Is the communication privileged? (B)
Yes. The attorney-client privilege doesn’t apply if the client seeks the attorney’s services to engage in or assist a future crime or fraud, but this crime-fraud exception doesn’t apply to communications about past crimes.
Holly is representing Deena in a murder case. Deena brings her journal to Holly’s office and tells her it contains entries from the days before the murder. She asks Holly to keep it safe during the trial.
Is the journal privileged? (B)
No. The attorney-client privilege covers both oral and written communications, but the client can’t protect a preexisting document or thing from discovery simply by turning it over to the attorney. If the document or thing would be discoverable in the client’s hands, it’s equally discoverable in the attorney’s hands. Note, however, that their conversation about the journal would be privileged.
Alison e-mails her lawyer, Bill, about a sensitive matter. Alison then forwards the e-mail to a friend.
The e-mail is protected by what? (B)
Bill’s duty of confidentiality only. By forwarding the e-mail to a third party, Allison waived her attorney-client privilege. However, the ethical duty of confidentiality applies to information relating to the representation even if some third parties know about it.
A court orders Joe to disclose what Joe believes to be a privileged communication with his client. The client wants the information to remain private.
What should Joe do next? (B)
Assert the a-c privilege. A lawyer may reveal a client’s confidential information to the extent that he’s required to do so by law or court order. However, absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order isn’t authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.
