Privilege

Question 1

How are privileges governed?

Answer 1

Rule 501 - privileges are governed by common law. When state law governs civil claim or defense, state law determines privilege.

Question 2

What types of privilege are recognized under federal law?

Answer 2

• Right against self-incrimination
  
  • Attorney-client privilege and work-product privilege
  • Spousal privilege

Question 3

What factors are required to assert attorney-client privilege?

Answer 3

• A client or the client’s representative,
  
  • An attorney or her representative,
  • A communication between those two parties,
  • Confidentiality of the communication, and
  • A purpose of facilitating professional legal services to the client.

Question 4

What are the three main exceptions for attorney client privilege?

Answer 4

• Furtherance of crime or fraud - if a client seeks help in carrying out an ongoing crime or seeks advice about how to commit future crimes.
○ In many jurisdictions, this could allow an attorney to disclose the entire conversation, even information that would otherwise be privileged.
• Breach of duty by lawyer or client -
• Joint client - if an attorney represents two or more clients jointly, and the representation breaks down, and one client sues the other, then any client may disclose the confidential communications that occurred during the representation.

Question 5

What is the test for determine the client in a business setting (Upjohn factors)?

Answer 5

• The managers provided information directly to the company’s counsel to help the company secure legal advice.
  
  • The managers knew this was the purpose of supplying the information.
  • They provided this information in response to a superior’s request.
  • The communications related to matters within the scope of the manager’s duties.
  • Other employees could not provide this information to counsel.
  • All parties treated the communications as highly confidential.

Not all Upjohn factors need to be met. Must at least show confidentiality and a purpose of obtaining legal device.

Question 6

What is work product and when is it privileged?

Answer 6

Work product - developed in anticipation of litigation.
• Applies to documents or other materials prepared by either the attorney or the client, not just communication between the two.
• If clients prepare documents inside the company in anticipation of litigation, that would be considered work-privilege and does not have to be disclosed, even if not shared with the attorney.
• Qualified privilege for facts about the dispute.

Question 7

Who controls the waiver of privilege for a company?

Answer 7

The CEO.

Employees can be considered the client, but only the CEO can waive privilege.