Chapter 3 Navigating the Contours of Attorney-Client Privilege

• Jurisdiction: United States

Chapter 3 Navigating the Contours of Attorney-Client Privilege
Kyle E. Scherer Venable LLP Washington, D.C.
Catherine Finley Waste Management Inc. Los Angeles, CA

KYLE E. SCHERER is a partner in Venable's Environmental and Natural Resources Group and co-chair of the firm's Native American Law and Policy Practice. He leverages significant experience working in the federal government to counsel tribes, corporations, and state and local governments on matters involving energy and natural resource development, infrastructure, land use, and regulatory compliance. Prior to joining Venable, Kyle served as the principal deputy general counsel for the White House Council on Environmental Quality. He began his career in federal service at the U.S. Department of Justice, where he worked as a White House Fellow and counsel to the associate attorney general, with a portfolio that included oversight of the Environment and Natural Resources Division and the Office of Tribal Justice. In 2017, Kyle joined the U.S. Department of the Interior as a counselor to the assistant secretary for Indian affairs. He was later appointed deputy solicitor for Indian Affairs and acting deputy solicitor for parks and wildlife, where he provided advice to the secretary of the interior and other administration offices on issues ranging from Indian gaming and tribal trust land acquisitions to Endangered Species Act enforcement and national monument designations. Kyle began his legal career working on the Navajo Nation as a staff attorney for DNA-People's Legal Services, a nonprofit organization that provides access to justice for low-income Native Americans living in the Four Corners region of the United States. He is an enrolled member of the Munsee Delaware Nation and is a graduate of Harvard College and Harvard Law School.

CATHERINE RIEGLE FINLEY, Senior Legal Counsel, Waste Management, Los Angeles, CA

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This year marks the thirtieth anniversary of the release of My Cousin Vinny.¹ And for thirty years, law school students throughout the country have dutifully watched excerpts of the film in courses on evidence and trial advocacy. In one of Vinny Gambini's earliest questionable decisions, the titular character agrees to represent both his cousin, Bill Gambini, and his cousin's friend, Stan Rothenstein. The ethical perils of joint representation are discussed in the American Bar Association ("ABA") Model Rules of Profession Conduct and are discouraged, in part, due to privilege concerns should former joint clients sue one another.² This presentation will clarify the contours of this aspect of the model rule, as well as other attorney-client privilege concerns that can arise in the context of litigation. Through this information, discussion of relevant hypotheticals, and the accompanying PowerPoint presentation, it is the authors' hope that energy, natural resources, and environmental lawyers will be able to spot common issues and better advise clients on how to prevent the loss of this important evidentiary privilege.

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I. Attorney-Client Privilege and the Duty of Confidentiality.

The attorney-client privilege is the oldest of all evidentiary privileges,³ dating back to the late-1500s.⁴ In short, it protects "(1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client."⁵ This privilege is foundational to both the legal profession and the administration of justice, and is achieved by "encourag[ing] full and frank communication between attorneys and their clients."⁶ These goals overlap with those of the ethical duty of confidentiality that lawyers have to their clients. There are, however, critical differences between the two, and the scope of each in any particular jurisdiction should be thoroughly researched before taking any action that could jeopardize a client's rights or one's professional standing.

Hypothetical 1

You previously represented OIL PIPELINE INC. in a successful federal permitting application. OIL PIPELINE INC. recently filed an amended pleading in related litigation stating that the approved application contained a material misstatement. As the lawyer who prepared the application, you would like to publish a Twitter thread that provides color on what OIL PIPELINE INC. has publicly disclosed. Under these circumstances, are such online communications permitted?

In this hypothetical, information contained in the amended pleading is clearly not protected by the attorney-client privilege, as it was OIL PIPELINE INC. that filed the information with the court. Nonetheless, providing commentary on the material contained in the amended pleading without the explicit consent of OIL PIPELINE INC. is a violation of a lawyer's duty of confidentiality. This is true even if such commentary is simply restating what

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has been publicly disclosed. The ABA recently clarified in a formal opinion that this type of commentary violates ABA Model Rule 1.9(c)(1):

Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client's industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.⁷

This opinion represents just one example of the duty of confidentiality extending further than the attorney-client privilege. This is attributable to the fact that confidentiality is an ethical responsibility governing members of the legal profession, whereas attorney-client privilege "is an exception to the general duty of a witness to offer evidence."⁸ Other federally recognized privileges include clergy-penitent privilege,⁹ marital privilege,¹⁰ and psychotherapist-patient privilege.¹¹

The applicability of attorney-client privilege is dependent on two related criteria: first, whether each essential element of the privilege is satisfied; and second, whether the client has taken any action that would constitute a waiver of the privilege. This discussion will focus on

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the federal common law, as each state has developed its own evidentiary rules, some of which vary significantly and should be consulted on application.

II. Satisfying the Essential Elements of Attorney-Client Privilege.

A. "A Communication"

A "communication" is broadly understood to include "any expression through which a privileged person . . . undertakes to convey information to another privileged person and any document or other record revealing such an expression."¹² This definition is limited, however, and does not include evidence delivered from a client to an attorney,¹³ underlying facts,¹⁴ or information regarding a client's identity and fee payment information.¹⁵

B. "Made Between Privileged Persons"

This element of the attorney-client privilege contains a few distinct terms, each of which has been interpreted by federal courts. The first is "made between," and is thus phrased to confirm that protected communications include not only those made by a client to his or her attorney, but also advice shared by an attorney to his or her client.¹⁶ The use of "privileged persons" is less obvious. It extends beyond attorneys and clients to include "[l]aw clerks, secretaries, paralegals, file clerks, telephone operators, messengers, clerks not yet admitted to the bar, among other aides, including consulting experts," but only under certain circumstances.¹⁷ Consider the following hypothetical:

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Hypothetical 2

NICKEL MINING LP employs a large in-house legal team. A supervising associate general counsel has instructed NICKEL MINING LP's regulatory compliance team to coordinate with PARALEGAL CWA, a senior paralegal and former EPA employee who has substantial experience dealing with agency requirements. Under these circumstances, are communications between NICKEL MINING LP's regulatory compliance team and PARALEGAL CWA protected by attorney-client privilege?

Here, PARALEGAL CWA's communications are likely not protected by attorney-client privilege, as they originated with PARALEGAL CWA and do not appear to involve consultation with an attorney.¹⁸ To avoid this result, lawyers should actively supervise the work of their paralegals and ensure that any advice communicated by paralegals to clients is at their direction. This is important in both a litigation context, and to protect against the unauthorized practice of law.¹⁹ A more difficult set of questions arises when the client is a business entity or organization.

Hypothetical 3

SOLARFARM LLC engaged SCIENTIST as an independent contractor to help evaluate existing technologies for energy storage. Years later, the mega-battery site developed by SOLARFARM LLC was engulfed in a catastrophic fire after an industrial lithium battery exploded. Under these circumstances, are communications between SCIENTIST and SOLARFARM LLC's outside counsel protected by attorney-client privilege?

In this hypothetical, whether the independent contractor's communications are protected by attorney-client privilege depends on the applicable federal court's recognition of the "functional equivalent" doctrine. Where this approach is embraced, contractor communications are afforded privileged status if the contractor "was, essentially, incorporated into [the company's staff] to perform a corporate function that was necessary in the context of the

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[company's affairs] at that time."²⁰ This result and its unsettled outcome demonstrates the need for attorneys to carefully review their jurisdiction's evidentiary privilege jurisprudence. And nowhere are these distinctions as pronounced as when determining who among an organization's employees qualifies as a "privileged person."

Since 1981, federal courts hearing "federal question" cases have utilized a multi-factor...