Pg 50

Question 1

Does the attorney-client privilege protect evidence that is given to the attorney?

Answer 1

No, the attorney must turn that over to the police if it is in the form of a tangible item or document because it is substantive evidence in the case that doesn’t change its status just because it was given to an attorney. The attorney doesn’t usually have to tell the police where he got the evidence, but if it matters to the case, he might have to say where it was originally found

Question 2

If at trial a plaintiff called his friend to testify that the defendant’s attorney told P’s friend he had a client that wanted to break his contract with the plaintiff. That means that the attorney disclosed confidential attorney-client communications to a third party, so does that mean that the privilege is waived?

Answer 2

No, because the attorney doesn’t have the power to waive the attorney-client privilege for his client, since he is not the holder of the privilege.

Question 3

What are the elements of attorney-client privilege?

Answer 3

– communication made between client and attorney
– communication made in the course of the attorney-client relationship
– communication made in confidence, which is presumed if the first two elements are met
- burden shifts to the opposing side to show that the communication wasn’t made between an attorney and client in the course of a professional relationship, or that confidentiality was destroyed/waived, or that an exception applies

Question 4

What is the definition of an attorney?

Answer 4

Someone that is, or that the client reasonably believes is, authorized to practice law

Question 5

Who all is included in the definition of an attorney?

Answer 5

Actual licensed attorneys and those that hold themselves out to be licensed attorneys, even if they are not

Question 6

Does a client have a duty to investigate whether someone is a bona fide attorney?

Answer 6

No

Question 7

If an attorney has an office and a diploma on the wall, but he just bought that diploma, is he still considered to be an attorney for the attorney client privilege purposes?

Answer 7

Yes

Question 8

What is the test to determine if attorney-client privilege applies based on someone being an attorney or not?

Answer 8

Whether there was a reasonable belief that the person was an attorney. If some guy in a trenchcoat on the street was offering legal advice, that would not count

Question 9

What’s the definition of client for attorney-client privilege to apply?

Answer 9

Someone that directly or through an authorized representative consults an attorney to get legal advice or services

Question 10

If a client is a corporation, how does attorney client privilege apply?

Answer 10

Corporations can only have conversations with attorneys through individuals so this considers whether:
– the person is a natural choice to speak with the attorney? This includes senior executives
– the communication was intended to be confidential
– if the person’s only connection is that he is a witness, that is not likely confidential

Question 11

If someone is a real estate agent and also an attorney, and a client wants him to sell their house, would that result in client attorney privilege?

Answer 11

If you can do it without a law degree, no privilege applies. So here this is just business advice

Question 12

If a corporate truck gets in an accident and a company employee happened to witness it, then he is interviewed by the corporation’s attorney, is that conversation considered to be privileged by attorney-client privilege?

Answer 12

Probably not because the person’s only connection to the case was that he was a witness

Question 13

Attorneys that work with corporations must be very careful to do what?

Answer 13

Clarify that they represent the corporation and not the individuals

Question 14

If the client is a corporation, the attorney client privilege extends to communications with whom?

Answer 14

The corporation’s officers or employees that are authorized/requested to make communication.

Question 15

Does attorney-client privilege apply to an initial consultation between an attorney and a client even if no official relationship ever is formed?

Answer 15

Yes

Question 16

Does attorney-client privilege protect the fact that a meeting happened, or the date or length of the meeting, or the identity of an attorney’s clients?

Answer 16

No

Question 17

Does attorney-client privilege protect the fact that an attorney is representing a client?

Answer 17

Not usually, but there can be situations where it would be confidential because the information is sensitive. Ie: criminal attorney that specializes in representing child molesters - just knowing that the attorney is representing the client makes people assume he is a child molester

Question 18

Is it possible to ask on cross if the defendant met with counsel for two hours before he sent a letter without violating attorney-client privilege?

Answer 18

Yes, because the privilege does not protect the fact that a meeting happened, or how long the meeting was

Question 19

If a privileged communication happens in front of someone that is not reasonably necessary to further the attorney-client relationship, such as a girlfriend, what does that do?

Answer 19

That waives the privilege for anything that is said in front of the girlfriend

Question 20

Does attorney client privilege protect observations?

Answer 20

No, if an attorney sees a client hiding a murder weapon, the attorney is an eyewitness and he cannot refuse to testify

Question 21

If a plaintiff sues the defendant for negligence from a car accident, and the defendant goes to the attorney and tells him he ran the light, then later at the park with his friend he says he ran the light, does that destroy attorney-client confidentiality?

Answer 21

No, because the defendant only disclosed the facts, not anything about his communication with the attorney.

Question 22

If a client tells his attorney that he ran a red light, and then he later tells his friend he told his attorney he ran the red light, does that destroy attorney-client confidentiality?

Answer 22

Yes because the client told the third-party what he communicated to his attorney. If the plaintiff’s attorney asks on cross to admit that he told his attorney he ran the red light, he would have to answer because it is now a party opponent admission, and no privilege would apply since confidentiality was destroyed.

Question 23

If a plaintiff meets with his friend and tells his friend that he told his attorney that he ran a red light, what are the different ways that opposing counsel can highlight this on account of the plaintiff waving attorney-client privilege?

Answer 23

• by cross-examining the plaintiff and asking him to admit that he told his attorney he ran the red
  – making the plaintiff admit he told his friend that he told his attorney he ran the red (this is double hearsay because each level is party opponent)
  – by calling the friend to the stand and asking the friend to admit the defendant told her he told his attorney about the red
  – by calling the plaintiff’s attorney to the stand and asking him to admit that the plaintiff told him about the red (although likely inadmissible under 403).

Question 24

If you disclose that you met with an attorney, does that destroy attorney-client privilege?

Answer 24

No, and you can even say that you met with an attorney about “the crash.“ It’s permissible to talk about the general nature or reason for the consultation, just not the substance

Question 25

What is the essential thing that is protected under attorney-client privilege?

Answer 25

Communication, not the facts (facts are freely discussable)

Question 26

What are the major exceptions to attorney-client privilege?

Answer 26

– Crime/fraud exception
– Deadguy exception
– dispute between attorney and client
– litigation between former joint clients
– attorney reasonably believes disclosure is necessary to prevent death or serious bodily harm

Question 27

What is involved in the crime/fraud exception to attorney-client privilege?

Answer 27

There’s no privilege when the attorney’s services are sought or gotten to further a crime or fraud. This doesn’t include when someone tells the attorney that they already committed a crime, or when the attorney helps a client get acquitted of a crime he knows the client committed

Question 28

Is the crime/fraud exception to attorney-client privilege apply when someone tells their attorney that they already committed a crime, or when the attorney help the client get acquitted of a crime he knows that the client committed?

Answer 28

No

Question 29

What is the rationale behind the crime/fraud exception to the attorney client privilege?

Answer 29

To stop attorneys from actually participating in or helping with ongoing or future crimes/fraud

Question 30

If a client says to his attorney, “just wanted to tell you that I’m going to commit fraud“ does that count under the crime/fraud exception to attorney-client privilege?

Answer 30

No because the client did not ask for the attorney’s help or use his services to do it

Question 31

If on cross, the defendant is asked if he told his attorney that he wanted the attorney to find a way to help him get away with the breach of contract he already committed, does that fall under the crime/fraud exception to attorney-client privilege?

Answer 31

No because he isn’t asking the attorney to help him commit fraud, he is asking for him to prevail in litigation for a prior breach.