PR Finals Flashcards
ACP may be invoked with respect to:
1.
2.
3.
4.
- Communication
- Privileged persons
- In confidence
- Seeking legal advice
ACP is ____ advice while WPD attaches to….
- Legal advice
- Materials prepared in “anticipation of litigation”
What docs are protected by WPD?
Those prepared in “anticipation of litigation.”
Exceptions to ACP?
1.
2.
- Voluntary waiver
- Crime / fraud
_____ wavier of ACP: voluntary disclosure in non-privileged communications.
Voluntary waiver
___ ___ exception to ACP: Advice sought for purpose of committing a fraud or crime.
Crime-Fraud exception
ACP: If ∆ was required to produce documents [not voluntary], has ∆ waived ACP?
No. The disclosure to non-privileged party must be voluntary.
T/F) ACP: If a 3rd party is included in the conversation btw the atty & the client, privilege does not apply.
True. The communication is NOT intended to be confidential.
The ____ doctrine prevents from DISCOVERY by opposing party, documents and _____ things that are prepared in “anticipation of litigation.”
- WPD
- Tangible things
Why is WPD broader than ACP?
Does not require a communication between lawyer & client seeking legal advice.
Can WPD apply to materials prepared by the client with no involvement of lawyer?
Yes.
WPD: What standard is applied when the document was prepared primarily in anticipation of litigation?
Reasonable standard
Can you waive WPD the same as ACP? IE: Privileged comms shared with third party? [Sharing docs]
Yes.
What exception applies to WPD but not ACP?
- Undue hardship
- Substantial need
[WPD Waiver exceptions]
_______ Doctrine: Where the 3rd party facilitates comms between atty & client. [paralegal, accountant, etc.] does not waive privilige.
Kovel Doctrine
This doctrine that allows separately represented parties with common legal interests to share information with each other and their respective attorneys without destroying the attorney-client privilege.
Also known as Joint defense doctrine.
Common Interest doctrine
_____ equivalent doctrine: The 3rd party is “functionally” an employee of the law firm.
Functional equivalent doctrine
T/F) Courts have generally rejected WPD exceptions as applied to 3rd party consultants bc anybody can fit description of “consultant.”
True!
WPD sequencing in court?
- Seeking party pleads “not privileged” and “relevant.”
- Opposing party shows “prepared in anticipation of litigation.”
- Seeking party now shows can’t get without “undue hardship” and has “substantial need.”
Attorney shall not real info related to client unless…
- Consent
- Impliedly authorizied
- Exceptions [self defense, etc.]
What are the potential types of conflicts of interest?
- Current / co-clients
- former and current clients
If not doing “current” work for a client, can they still be a “current client?”
Yes if the client reasonably believes that a relationship exists.
Current client?
1. Hired to handle ALL clients legal probs.
2. Hired to handle single, discrete matter.
3. Episodic client.
- Yes
- No
- Yes
Episodic clients do not have reasonable belief that atty-client relationship exists. [T/F]
False. ABA Opinion notes that they may.