Chapter 52 Source and Choice of Attorney-client Privilege Law

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 52

SOURCE AND CHOICE OF ATTORNEY-CLIENT PRIVILEGE LAW

52.1 INTRODUCTION

Courts analyzing litigants' attorney-client privilege claims must select the applicable privilege law.

52.2 ADDRESSING ONLY ONE TYPE OF PROTECTION

In many cases, litigants withholding communications or documents claim both attorney-client privilege and work product protection.

Some courts inexplicably fail to address one of the protections if it finds the other applicable. This does not make much sense.

Later developments might require courts to deal with the protection the court failed to address.

Similarly, courts finding the privilege applicable might decline to assess litigants' work product claim, but later conclude that the litigants waived the fragile attorney-client privilege through a disclosure that would not have waived the more robust work product protection.

• For instance, courts finding the work product doctrine applicable might decline to assess litigants' privilege claim, but later find that adversaries can overcome the litigants' work product claim—either requiring the courts' analysis of the privilege claim, or unfairly depriving litigants of additional grounds for withholding communications or documents.

• Similarly, courts finding the privilege applicable might decline to assess litigants' work product claim, but later conclude that the litigants waived the fragile attorney-client privilege through a disclosure that would not have waived the more robust work product protection.

Courts ruling on only one protection claim might also deprive appellate courts of additional grounds to uphold litigants' withholding of communications or documents.

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52.3 CHOICE OF PRIVILEGE LAW

Some courts seem to seek ways to avoid engaging in choice of law analyses. [52.301]

•	For instance, some courts conclude that different states' possibly applicable laws provide essentially the same protection, or note that the parties explicitly or implicitly agree on the applicable privilege law. [52.302]
VA	The Western District of Virginia 1 honored the parties' agreement that Virginia law applied in a diversity case.

Some courts honor transactional parties' choice of law in selecting applicable privilege law, discussed below. [52.303]

52.4 SOURCE OF PRIVILEGE LAW

Every United States jurisdiction organically developed its own attorney-client privilege law. [52.401]

Despite its ancient heritage and grand societal purpose, attorney-client privilege protection does not rest on constitutional principles. [52.402]

Federal courts have developed a federal common law of privilege, which applies in federal question cases. ² [52.403]

States articulate their attorney-client privilege principles in statutes, rules, common law, or a mixture of them. [52.404]

•	Some states continue to tinker with their privilege law.
VA	The Eastern District of Virginia, 3 the Western District of Virginia, 4 and a Virginia circuit court 5 held that Virginia recognized its privilege protection in the common law.

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Some federal and state courts look to each others' privilege law when interpreting and applying their own protections. [52.405]

52.5 CHOICE OF PRIVILEGE LAW IN STATE COURTS

State courts selecting the applicable attorney-client privilege law apply their own choice of law rules.

• This exercise usually results in state courts applying their own state's attorney-client privilege law, but not always.

• For instance, some Illinois state courts apply the narrow Illinois "control group" test ⁶ to communications that took place outside Illinois—often in states applying the broader Upjohn standard. ⁷

State courts' choice of law analysis can dramatically affect the available privilege protection.

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