Witness Privilege Flashcards
privilege definition
rule that prevents disclosures of confidential communications between people
with certain legally recognized relationships
Rule 501: Privilege in General
The common law — as interpreted by United States courts in the light of reason and
experience — governs a claim of privilege unless any of the following provides otherwise:
* the United States Constitution;
* a federal statute; or
* rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
-Erie governs in DoC
-FQ / Federal Criminal Cases look at federal law
All privileges
● Attorney-Client
● Spousal Privilege
○ Adverse Testimonial Privilege
○ Marital Communications Privilege
● Psychotherapist-Patient Privilege
● Self-Incrimination
Proposed Rule 503: Attorney Client Privilege
(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any
other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . .”
Former Clients are covered
-Only during the time worked at the company
Government employees
-Crimes are not covered (saying they reached out to DA)
Upjohn Co v. US (who is a client?)
Big issue: does a corporation have a privilege?
Control Group Test: Yes it does but only people that can speak for the corporation and have decision making power are covered (not employees)
No longer law
General counsel: Thomas sent letters to subsidiaries to figure out what was going on and interviewed officers and employees and they were all told the matters were highly confidential. They told IRS about these payments and they opened investigation and demanded notes and interview
Claimed attorney client and work product
Lower court did not provide protection
Client is upjohn (the corporation)
New Test from Upjohn: Scope of attorney-client privilege includes communications by corporation’s employees to its attorney acting as such at the direction of corporate superiors to secure legal advice if:
- Such communications concerned the employee’s corporate duties
- The employees were aware that information was sought from them to obtain legal advice
- The communications were considered confidential when made and were thereafter kept confidential by the corporation
Work Product Immunity
anything attorney is using to assist in litigation
Materials prepared by attorney
In anticipation of litigation
Difference between work product and ACP: if there is not litigation on the horizon then there is no work product immunity going on
Examples of corporate
- Upjohn bookkeeper consulting corporate counsel regarding the legal implications of an accounting
error he made?
* YES – Protected by Attorney-Client Privilege - Upjohn chemist consults corporate counsel to tell him she just saw an Upjohn truck run a red light
and hit a pedestrian?
* PROBABLY NOT—the communication did NOT
concern the employee’s corporate duties - Upjohn VP consults corporate counsel about the
legal implications of his divorce?
* NO—the corporation is not the client there and
there’s no attorney-client relationship between
the VP as an individual and the attorney
US v. Kovel (who is an attorney?)
Not an attorney but an accountant
Appeal from tax law client, grand jury subpoena Kovel and claims attorney client privilege and was held in criminal contempt because he is not an attorney and can’t claim it
Anyone that covers legal work (like paralegal or law clerk that drafts a letter on behalf of an attorney) is covered
He worked under direct supervision of attorney and was giving the attorney advice about accounting
This was covered by privilege
Is this attorney’s advice?
What if a law firm’s paralegal independently tells the firm’s client about her views of the
legal issues in the case? Would the paralegal be considered a lawyer’s representative?
* NO—the paralegal is NOT acting on behalf of the attorney from whom the client was
seeking legal advice
2. What if later, after talking to the attorney, the paralegal gave the client the advice that the
paralegal had formulated on her own after speaking with the attorney?
* NO—unless the attorney asked the paralegal to convey that advice because it was the
same as the attorney’s
What is a communication? (US v. Kendrick)
Lawyer said client was incompetent to stand trial, he’s saying the conversation about competency with lawyer was privileged
This is not privileged, not actually communications but something anyone can observe (body language, demeanor)
What is not considered confidential communication?
Identity of client
Address of client
Existence, terms, and duration of attorney client relationship
Legal advice exception: fee structure and way client is paying is illegal would be protected
Last link exception: if address of client would be last link to tie them to illegal conduct
What is confidential?
Claiming it was not privileged because he was not acting as an attorney at the time (only there as friend)
Defense: everyone there knew I was an attorney and introduced him as my client
When in doubt exclude others from conversation that are not part of case or client
Rule: Under evidence law, a client waives the attorney-client privilege if the client’s communications with the attorney are made in the presence of a third party.
Eavesdroppers: as long as attorney made reasonable efforts to prevents others from hearing conversation it is protected
Common Interest Rule: different counsel but aligned in litigation it is protected
What does it mean to facilitate professional legal services? (Us v. Rowe)
Fact finding and anticipating litigation is covered (if person investigating is an attorney or there is a person working for an attorney)
Aka if you want something investigated hire attorney to look into it because it will be protected
Charles Rowe (defendant) was the senior partner at a law firm (defendant). Rowe became concerned that Lee McElravy, an attorney at the firm, was mishandling client funds. Rowe assigned two of the firm’s associate attorneys to investigate McElravy. While investigating McElravy, a grand jury subpoenaed the associates to ask them about their discussions with Rowe regarding McElravy. The associates and Rowe asserted the attorney-client privilege, claiming that the discussions were protected against disclosure because Rowe was the law firm’s attorney. The district court found that the associates were not providing legal services, because they were assigned merely to conduct factfinding for Rowe. As a result, the district court ordered the associates to testify about the discussions. Rowe and the law firm appealed.
Issue
Can the attorney-client privilege protect an attorney’s factfinding that pertains to legal advice?
Holding and Reasoning (Kozinski, J.)
Yes. The attorney-client privilege applies to protect communication against disclosure when a client consults an attorney for professional legal services. Factfinding that pertains to legal advice can constitute the type of professional legal services required to invoke the privilege. Generally, the first step in rendering any sort of legal advice is investigating the factual background of the legal question. As a result, the attorney-client privilege can protect an attorney’s factfinding that pertains to legal advice. In this case, the district court abused its discretion by finding that the attorney-client privilege did not apply to the associates’ communications with Rowe regarding McElravy. When Rowe assigned the associates to investigate McElravy, the associates were acting essentially as in-house counsel for the law firm. The associates were given their assignment in anticipation of litigation, as the law firm could expect to be sued if McElravy was mishandling client funds. Although the associates merely engaged in factfinding and did not provide the firm with any legal advice, they were assigned the factfinding task in order to help Rowe provide legal advice to the law firm. Accordingly, the attorney-client privilege applies to the associates’ conversations with Rowe, who was acting as the law firm’s attor
Examples
Summer associate sits in on a meeting
between attorney and client to see how to
discuss legal strategies with a client—the
summer associate is NOT working on the
client’s case
* MAYBE Privileged—was the purpose to
assist the client in rendering legal services?
2. What if the summer associate had been
working on the client’s case?
* LIKELY Privileged
Waiver of Privilege
**Express waiver
**
**Waiver by failure to assert
**
-If attorney does not object before client answers about a confidential matter
**Waiver by voluntary disclosure
**
-You leave office and go to friend and tell them what y’all talked about (is not covered)
**Waiver by putting protected information at issue
**
-Accidentally emailed files (as long as party took reasonable steps against disclosure and immediately sought to rectify the error it won’t be waived)
Rule 502 waiver
Diversity case: state rule of privilege that applies
Crime Fraud Exception
No privilege attaches if the client consults the lawyer for assistance in committing a crime or fraud
Does not apply to a client seeking advice about whether an act is illegal
Does not apply to past acts
Only look to client’s knowledge intentions
Privilege Logs
(5) Claiming Privilege or Protecting Trial-
Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will
enable other parties to assess the claim.
Contents: at a minimum:
All the authors and recipients of claimed documents
Date of the documents
Why they are being withheld
Difference between Attorney Client Privilege and Attorney Duty of Confidentiality
ACP:
Narrows evidentiary privilege
Covers confidential communications between an attorney and a client
Prevents compelled exposure
DOC:
Ethical rule
Covers all information relating to representation of client
Protects against voluntary disclosure and from use harmful to client
Spousal Privileges
Adverse Testimonial, marital communications
Adverse Testimonial Privilege
Applies to exclude all testimony against a spouse on any subject, including marital communications
Spouses must be married at time of trial to assert
Only the testifying spouse may assert the privilege
Applies only to criminal cases
Recognizes the injury to a spouse and children exception
-In essence, it protects individuals from being compelled to provide testimony that could negatively impact their legal standing or expose them to liability. Policy: don’t want to mess up someone’s marriage
Trammel v. US (adverse)
Husband caught with drugs and she cuts a deal in exchange for testimony against the husband
She can testify as to what she observed or what they said to each other if someone else was there (but can’t share 1 on 1 conversations)
Rule: A witness spouse may testify against their spouse if they choose to do so (defendant spouse cannot force or withhold them from testifying, consent no longer necessary)
Exceptions to spousal privileges
Sham marriages
The crime and case is against spouse or child
Marital Communications Privilege
Applies only to confidential communications between spouses
-Made in confidence: not in public, closed doors
Spouses need not be married to assert the privilege. Confidential communications are privileged for all time, unless an exception applies
Either spouse may assert the privilege in most jurisdictions
The defendant can prohibit the spouse from testifying
Applies to both criminal and civil cases
