Attorney-Client Privilege, Confidentiality and Work-Product Doctrine Flashcards
Attorney-Client Privilege v. Confidentiality
The confidentiality rules protects not only information communicated from the client himself, but also information that the lawyer learns from talking to third-party witnesses, from consulting with experts and consultants, and from preexisting documents that the client provides to the lawyers. The privilege protects only information communicated in secret between the client and the attorney.
The ACP is a shield that protects against judicially compelled disclosure (that is, the lawyer or client may refuse to answer or produce documents in response to a subpoena). Confidentiality prohibits at any time the voluntary disclosure of client information to third parties (casual friends or acquaintances, opposing counsel, other parties contemplating lawsuits, the media, etc.). But it can be compelled by a subponea, deposition, etc.
A third respect in which the rules of confidentiality are broader than the rules of privilege is that under the rules of confidentiality a lawyer may not use confidential information to the disadvantage of the client,
Sahl, John P.. Professional Responsibility in Focus (Focus Casebook Series) (p. 242-243). Wolters Kluwer. Kindle Edition.
Attorney-Client Privilege Elements
Section 68 of the Restatement (Third) of the Law Governing Lawyers (Restatement) similarly provides that the attorney-client privilege protects “(1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.”
Sahl, John P.. Professional Responsibility in Focus (Focus Casebook Series) (p. 253). Wolters Kluwer. Kindle Edition.
Scope of Attorney-Client Privilege
It covers:
- Communications between a client or prospective client and a lawyer or someone who the client reasonably believes is a lawyer
- Conversations in the presence of legal staff when the lawyer is directing the staff and giving legal advice
- Conversations in the presence of third parties who are assisting the client
- Sometimes the “last link doctrine” - a client’s identity is protected by the attorney-client privilege when it connects the client to the offense.
- Covernsations about multiple issues, as long as one is a legal issue
Attorney-Client Privilege Doesn’t Cover
- Observations that anyone could see
- Covernsations between an attorney and client about non-legal issues
- Covernsations between a client and a lawyer’s staff
- the identity of the client, the fact of consultation, the amount of the fee, the general subject matter of consultation, and the client’s location
- Covernsations that the client doesn’t intend to be confidential
- Statements or documents that existed before the client-attorney relationships
- Facts
Attorney-Client Privilege Invocation
The privilege holder must make a timely refusal to disclose the evidence. The client is the holder of the attorney-client privilege and ultimately decides whether to assert or waive it. Given their agency relationship, the lawyer may sometimes assert or waive the privilege to protect the client’s interests. The privilege claimant bears the burden of proving its applicability.
Sahl, John P.. Professional Responsibility in Focus (Focus Casebook Series) (pp. 253-254). Wolters Kluwer. Kindle Edition.
Government Lawyers and the Attorney-Client Privilege
Generally, government workers and entities are protected in civil cases. Courts differ when it comes to criminal cases. For example, in In re Grand Jury Investigation (2005), the Second Circuit upheld the attorney-client privledge for a governer and his staff accused of recieving impermissable gifts, whereas the court in In re Grand Jury Subpoena Duces Tecum (1997) said that the government should be as transparent as possible since govenment entities can’t be charged with crimes and individual officials can hire their own lawyers.
Common Interest Doctrine
Involves multiple parties and multiple lawyers — each party having separate counsel. The common interest doctrine treats all lawyers and clients pursuing a common legal interest as a single attorney-client unit where the pooling of information remains privileged or confidential.
The common interest privilege claimant must show (1) that all clients and attorneys with access to the communication had in fact agreed upon a joint approach to the matter communicated; and (2) that the information was imparted with the intent to further the common purpose.
Sahl, John P.. Professional Responsibility in Focus (Focus Casebook Series) (p. 262=264). Wolters Kluwer. Kindle Edition.
Attorney-Client Privilage Exceptions
The crime-fraud exception to the attorney-client privilege provides that a client’s confidential communications with counsel are not protected from disclosure when made for the purpose of furthering a crime or fraud.
The joint-clients exception provides that a communication to a lawyer that is relevant to a matter of common interest between the joint clients is not privileged when one joint client proceeds against another joint client.
Self-Defense Exception - The attorney-client privilege does not protect confidential communications related to a client’s action against his counsel concerning the quality of his representation.
Sahl, John P.. Professional Responsibility in Focus (Focus Casebook Series) (p. 284, 288). Wolters Kluwer. Kindle Edition.
Work-Product Immunity
Work-product immunity prevents the discovery of mental impressions, conclusions, opinions, or legal theories of attorneys or their representatives involved in or preparing for litigation.
Ordinary work product, for example, a witness’s statement to the lawyer, written or oral, would generally be immune from discovery. However, the court can compel the lawyer’s disclosure of the witness’s statement if the inquiring party can show (1) a substantial need for the material in order to prepare for trial, and (2) that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means.
Opinion work product includes the lawyer’s mental impressions, opinions, and strategy in litigation — often referred to as the “core” work product. Opinion work product is extremely difficult to obtain. The inquiring party must show extraordinary circumstances to justify disclosure — a standard that the Restatement notes has never been intelligibly defined.
Sahl, John P.. Professional Responsibility in Focus (Focus Casebook Series) (p. 289-291). Wolters Kluwer. Kindle Edition.
Attorney-Client Privilege Test
The test for determining when the privilege covers a lawyer’s representative is whether (1) the lawyer is directing his representative’s (like a paralegal) assistance, and (2) the lawyer is rendering legal advice.
