§502 Attorney-client Privilege and Insured-insurer Privilege

• Library: Evidence Restated Deskbook (2021 Ed.)

§502 Attorney-Client Privilege and Insured-Insurer Privilege

A. Confidential communications between an attorney and a client are generally inadmissible. An attorney is barred from disclosing confidential communications between the attorney and the client without the consent of the client. For the privilege to apply, three main elements must be shown: (1) the existence of an attorney-client relationship at the time the communication was made or advice given; (2) that the relationship existed with regard to the subject matter of the communication or advice; and (3) that the communication was made in the attorney's professional capacity and because of the relation of the attorney and client.

B. Exceptions. An attorney may disclose a confidential communication if (1) the client waives the privilege, or (2) the communication was in furtherance of the commission of a crime or fraud.

The privilege is inapplicable (1) to communications from competing claimants under the same deceased client to avoid favoring one set of claimants over the other, (2) to disputes between joint clients—thus, if two or more persons employ the same attorney on the same business, communications between the attorney and any one (or more) of them are privileged as to outsiders but not inter se, (3) to disputes between a lawyer and client in regard to confidential information necessary to establish or defend against an alleged breach of duty, and (4) to communications associated with the drafting, subscription, and acknowledgment of a document when the attorney is employed in the capacity of scrivener to draft the document and no legal advice is sought other than that required for the drafting.

C. Insured-insurer privilege. A confidential communication from an insured to a representative of the insurer is privileged if intended for transmittal to the insurer's attorney for purposes of the insured's defense under a duty to defend under the terms of a liability insurance policy issued by that insurer and providing coverage to that insured.

Notes

A. Confidential communications between an attorney and a client are generally inadmissible

In general—reflects the common law rule

In State ex rel. Great American Insurance Co. v. Smith, 574 S.W.2d 379, 382–83 (Mo. banc 1978), the Supreme Court explained the roots and policy behind Missouri's attorney-client privilege as follows:

The attorney-client privilege dates from the reign of Elizabeth I of England. See 8 J. Wigmore, Supra, s 2290. In recognition of that common law privilege, the legislature has enacted a statute, [§ 491.060, now RSMo 2016,] which provides, in part:

"The following persons shall be incompetent to testify:

(3) An attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client."

The foregoing section has been held in a court of appeals opinion to be declaratory of the common law rule. Bussen v. Del Commune, 239 Mo. App. 859, 199 S.W.2d 13 (1947). We agree that it should be so construed. The statute does not limit or diminish the common law rule.

. . . .

. . . There clearly is a societal need for persons to be able to employ and consult with persons trained in the law for advice and guidance as to legal matters. . . . [C]onfidentiality of the communications between client and attorney is essential for such relationships to be fostered and to be effective.

. . . .

The nature and complexity of our present system of justice and the relationships among people and between the people and their government make the preservation and protection of the attorney-client privilege even more essential. If this is to be accomplished, when one undertakes to confer in confidence with an attorney whom he employs in connection with the particular matter at hand, it is vital that all of what the client says to the lawyer [a]nd what the lawyer says to the client . . . be treated as confidential and protected by the attorney-client privilege. This is what a client expects.

The basis of the privilege is to promote freedom of consultation with lawyers. Both the functioning of the legal system and the fiduciary relationship existing between the lawyer and the client require the preservation of confidentiality. See Rule 4-1.6 cmt. [4]; McCaffrey v. Estate of Brennan, 533 S.W.2d 264, 267 (Mo. App. E.D. 1976).

It has also been stated that the privilege is "fundamental," State v. Timmons, 956 S.W.2d 277, 285 (Mo. App. W.D. 1997), to which disclosure is the exception, Smith, 574 S.W.2d at 383, "founded on the broad ground of public policy, . . . intended to secure all . . . in the full enjoyment of their civil rights, and must be construed with reference to the policy supporting it," Ex parte Schneider, 294 S.W. 736, 738 (Mo. App. E.D. 1927).

Burden of proof

A party claiming a privilege must supply the court with detailed information, in camera or otherwise, sufficient to enable the trial court and the reviewing court to determine that each element of the privilege is satisfied—a blanket assertion of privilege is not sufficient. State ex rel. Koster v. Cain, 383 S.W.3d 105, 116–21 (Mo. App. W.D. 2012); State v. Hooper, 552 S.W.3d 123, 130 (Mo. App. S.D. 2018).

Attorney-client relationship must exist

[F]or the rule of privilege to apply, the relation of attorney and client must have actually existed between the parties at the time the communication was made or the advice given. Moreover, such relation must have existed as to the subject matter of the communication or advice and the communication, if it is to be privileged, must have been made to the attorney in his professional capacity, and on account of the relation of attorney and client. If such relation existed, the privilege is not confined to communications or advice in connection with pending or anticipated litigation, but it extends to all matters where the attorney was consulted by his client for professional advice or service in the course of the employment.

Bussen v. Del Commune, 199 S.W.2d 13, 20–21 (Mo. App. E.D. 1947) (citations omitted); see also:

· State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d 379, 386 (Mo. banc 1978)

· Bd. of Registration for Healing Arts v. Spinden, 798 S.W.2d 472, 475–76 (Mo. App. W.D. 1990)

· State v. Pride, 1 S.W.3d 494, 505 (Mo. App. W.D. 1999)

· State v. Smith, 979 S.W.2d 215, 220 (Mo. App. S.D. 1998)

· State ex rel. Koster v. Cain, 383 S.W.3d 105, 116 (Mo. App. W.D. 2012)

The relationship "is established when a prospective client seeks and receives legal advice and assistance from an attorney who intends to provide legal advice and assistance to the prospective client." Polish Roman Catholic St. Stanislaus Parish v. Hettenbach, 303 S.W.3d 591, 601 (Mo. App. E.D. 2010). To determine whether the client has sought the legal advice and assistance of an attorney and has received it, "courts look to the substantive nature of the contacts within the relationship 'regardless of what formal or procedural incidents have occurred[.]'" Id. (citation omitted).

While no fee needs to be involved to earn the status of "client," Ex parte Schneider, 294 S.W. 736, 738 (Mo. App. E.D. 1927), a person or entity may not claim the privilege as a "client" if consulting an attorney on nonlegal matters, Smith, 979 S.W.2d at 220, or when an attorney-client relationship does not exist at the time of the interaction or communication, id. See Pipes v. Sevier, 694 S.W.2d 918, 925 (Mo. App. W.D. 1985); Wilcox v. Coons, 220 S.W.2d 15, 18 (Mo. banc 1949).

There is a statutory privilege with respect to communications between a lawyer acting as a federally authorized tax preparer (any individual who is authorized under federal law to practice before the Internal Revenue Service) and the client:

With respect to tax advice, the same common law protections of confidentiality which apply to a communication between a taxpayer and an attorney shall also apply to a communication between a taxpayer and any federally authorized tax practitioner to the extent the communication would be considered a privileged communication if it were between a taxpayer and an attorney.

26 U.S.C. § 7525(a)(1). But it only applies to communications on or after July 22, 1998.

"Client"

The term "client" is used broadly "and appl[ies] to all who communicate facts, expecting professional advice," including situations in which someone seeking counsel pays no fee and afterward decides to hire other attorneys for representation, Cross v. Riggins, 50 Mo. 335, 337 (1872), as well as situations in which the attorney informs a person that the attorney cannot represent the person but proceeds to give advice that the person relied on, State v. Longo, 789 S.W.2d 812, 815 (Mo. App. E.D. 1990). The term includes "a corporation," DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 531 (Mo. App. E.D. 1991); State ex rel. Lause v. Adolf, 710 S.W.2d 362, 364 (Mo. App. E.D. 1986), and an association, acting through its agents, State v. McChesney, 16 Mo. App. 259 (E.D. 1884). Likewise, the Missouri Department of Insurance, "a legally constituted entity," enjoys the protection of the attorney-client privilege. State ex rel. Dewey & Leboeuf, LLP v. Crane, 332 S.W.3d 224, 232 (Mo. App. W.D. 2010). "A corporate manager is a 'client' for purposes of the privilege." State ex rel. Polytech, Inc. v. Voorhees, 895 S.W.2d 13, 14 (Mo. banc 1995).

Representatives of the client

The term "client" also includes representatives of the client. Persons who constitute "representatives" of a corporate client for purposes of the privilege are defined in DeLaporte v. Robey Building Supply, Inc., 812 S.W.2d 526 (Mo. App. E.D. 1991). "The privilege covers counsel's communications with both top management and lower level employees." Id. at 531. The test of whether lower-level employees are covered is met if:

(1) the communication was made for the purpose of securing legal advice;

(2) the employee making the communication did so at the...