12.2 Attorney-client Privilege

• Library: Civil Discovery in Virginia (Virginia CLE) (2017 Ed.)

12.2 ATTORNEY-CLIENT PRIVILEGE

12.201 Introduction. The attorney-client privilege (and related work product doctrine, discussed in Paragraph 12.3) can shield documents and information from discovery. However, the privilege is complicated, often difficult to create, and easily lost.

The disputes between those seeking arguably protected information and those asserting the privilege normally occur in connection with discovery. In fact, the success or failure of litigants' discovery efforts often depends on how the litigants fare in disputes over the attorney-client privilege (and the related work product doctrine).

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The attorney-client privilege is the law's oldest privilege. ¹ It rests on the assumption that society will benefit if clients may speak freely with their lawyers in an effort to consummate transactions or resolve disputes through litigation or otherwise. ² Under this concept, lawyers are unable to adequately assist clients unless they have all of the necessary information (both beneficial and harmful). The privilege allows such frank communications without the risk that others will later learn what the lawyers and clients discussed.

However, society pays a cost for this benefit—the privilege places undeniably relevant information and documents out of reach. ³ The law's resulting ambivalence toward the protections is reflected in such issues as the waiver doctrine, burdens of proof, and other topics.

Those considering the attorney-client privilege should keep in mind three key elements upon which the privilege rests—doing so will often guide the analysis: (1) the intimacy of the attorney-client relationship; (2) the confidentiality within that intimate relationship; and (3) communications within the relationship.

12.202 General Formulation. Although many states have codified their attorney-client privilege doctrine, Virginia continues to follow a common law attorney-client privilege. ⁴ Somewhat surprisingly, the Virginia Supreme Court seems never to have articulated a standard formulation of the

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attorney-client privilege in Virginia. ⁵ However, it is apparent that Virginia does not deviate from the general national standard for the attorney-client privilege. ⁶ The classic statement of the privilege comes from a 1950 district court case from Massachusetts. ⁷

The attorney-client privilege protects from disclosure communications from a client ⁸ to his or her lawyer or the lawyer's agent relating to the lawyer's rendering of legal advice made with the expectation of confidentiality and not in furtherance of a future crime or tort, provided that the privilege has not been waived.

Each of these separate components involves myriad sub-issues, many of which can arise in connection with discovery disputes involving the attorney-client privilege. Virginia courts have addressed some but not all of these issues.

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12.203 Communications from a Client. To be protected by the attorney-client privilege, information or documents must be a communication from a client.

The term "communication" can conceivably even include acts that convey information. ⁹ On the other hand, lawyers' observations about their clients' demeanor or competence may not be a "communication" that the privilege protects from disclosure. ¹⁰ The Virginia Supreme Court seems to have taken a narrow view of this issue, but without much analysis. ¹¹

Although the privilege generally rests on communications between clients and their lawyers, the privilege can sometimes protect statements that the client has not communicated to the lawyer—if the client created the statement with the original intent to communicate it to a lawyer. ¹²

The attorney-client privilege belongs to the client and not to the lawyer. ¹³ This ownership notion requires the lawyer to properly create, appropriately assert, and not waive the privilege.

Virginia has adopted a parallel to ABA Model Rule 1.18. That rule defines a "prospective client" as a would-be client who "discusses with a lawyer the possibility of forming a client-lawyer relationship." ¹⁴ This means that a lawyer has no duty of confidentiality or loyalty if the lawyer receives a communication from "[a] person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship." ¹⁵

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A lawyer must maintain the confidentiality of information received from a prospective client but may freely represent the adversary if the prospective client does not retain the lawyer and has not shared with the lawyer any information that would be "significantly harmful" to the prospective client. ¹⁶ When a lawyer has received disqualifying information from a prospective client, representation of an adverse client is permissible if both the affected client and the prospective client have given informed consent. ¹⁷ The rule further provides that, even if that individual lawyer cannot represent the adversary, another lawyer in the firm may do so if the firm screens the individually disqualified lawyer from any participation in the matter and provides written notice to the prospective client. ¹⁸

Lawyers sometimes represent several clients in a single matter. Generally, there can be no secrets among multiple clients, so that what one client tells the lawyer can (and perhaps must) be shared with the other clients who are being represented by the same lawyer in the same matter. ¹⁹ One Virginia circuit court seems to have a more limited view of a jointly represented client's right to obtain the files generated by the lawyer during a joint representation, although the court might have been using the term "joint" as a synonym for "simultaneous." ²⁰

This general rule can have great significance if adversity develops between the former joint clients. In 2012, the Eastern District of Virginia Bankruptcy Court dealt with the ramifications of a law firm jointly representing a company and two of its executives in a derivative case. ²¹ When the company later declared bankruptcy and its trustee sought the law firm's

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files, the law firm argued that the corporation was just a "nominal defendant" and therefore not entitled to the firm's files. The court bluntly rejected this argument.

[W]hile the Debtor may have been named as a nominal defendant, there is no such thing as a nominal client of a law firm. Further, there is no support in the case law for a 'nominal defendant exception' to the principle that all clients are entitled to an attorney's files. ²²

If jointly represented clients become adversaries, one client cannot use the privilege to prevent disclosure to the other jointly represented clients. ²³ However, all jointly represented clients must join in any waiver that would open the conversations to third parties. ²⁴

Most courts find that the attorney-client privilege lasts beyond the relationship and even beyond the client's death. ²⁵ A deceased client's successor (executor or administrator) therefore owns the privilege. ²⁶ One exception to this general rule allows beneficiaries claiming under the decedent to learn the substance of communications between the decedent and the lawyer on the theory that the decedent would have wanted these communications revealed to assure that his or her testamentary plans are fulfilled. ²⁷

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Government entities may qualify as clients for purposes of the privilege. ²⁸ Some courts are reluctant to provide as much protection to government entities, given the public interest in "open" government. Certain communications between a government entity and a lawyer actually carry the force of law and, therefore, do not merit protection because they are designed to be promulgated. ²⁹ There may be a difference in the interests of government employees as policymakers and government employees as participants in day-to-day decisions that might merit scrutiny. ³⁰ This difference might strip the attorney-client privilege from communications between these government employees and their lawyer.

Lawyers who represent corporations or other entities represent the entities themselves and not any individuals associated with the entities. ³¹ Most courts hold that communications among related corporations remain privileged, ³² while others treat even affiliated companies as separate for

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purposes of the privilege (especially in the waiver analysis discussed in Paragraph 12.208). ³³ Courts often view corporations' privilege claims with skepticism. ³⁴

The Western District of Virginia explained that the privilege does not apply simply because communications were "routinely routed through corporate counsel." ³⁵

Virginia follows the doctrine enunciated in Upjohn Co. v. United States ³⁶ that recognizes the attorney-client privilege as covering communications between a corporation's lawyer and any corporate employee (not just the "control group" employees). The Eastern District of Virginia, ³⁷ the Western District of Virginia ³⁸ and a Virginia circuit court ³⁹ adopted the

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Upjohn standard. ⁴⁰ To qualify for this Upjohn protection, employees must know that they are speaking with the company's lawyer for purposes of the lawyer's providing the corporation with legal advice, must have information about the employees' corporate duties that is not available elsewhere, and must keep the communications confidential. Only corporate employees with a "need to know" are inside privilege protection. An Eastern District of Virginia decision took a narrow view of this "need to know" standard. ⁴¹ Disclosing privileged communications to employees without such a "need to know" can waive the privilege (this is discussed below, in connection with waiver). Most states apply this same approach to former employees as long as the corporation's lawyer limits the communications to matters within the former employees' duties while employed by the company. ⁴² The Eastern...