Contents

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

TABLE OF CONTENTS

About the Author
Preface
Instructions for Using the Online Database
CHAPTER 1: ORGANIZATION OF THE OUTLINE
1.1	INTRODUCTION
1.2	ATTORNEY-CLIENT PRIVILEGE
1.3	CLIENTS
1.4	LAWYERS
1.5	CONTENT OF COMMUNICATIONS
1.6	CONTEXT OF COMMUNICATIONS
1.7	PRIVILEGE PROTECTION FOR INTERNAL CORPORATE INVESTIGATIONS
1.8	WAIVER OF THE PRIVILEGE
1.9	WORK PRODUCT PROTECTION
1.10	PROTECTED CONTENT
1.11	PROTECTION FOR INTERNAL CORPORATE INVESTIGATIONS
1.12	OVERCOMING WORK PRODUCT PROTECTION
1.13	WAIVER OF THE WORK PRODUCT PROTECTION
1.14	LITIGATION OVERVIEW
1.15	SOURCE AND CHOICE OF LAW
1.16	ASSERTING THE PROTECTIONS
1.17	LITIGATING THE PROTECTIONS
CHAPTER 2: ATTORNEY-CLIENT PRIVILEGE: INTRODUCTION AND BASIC PRINCIPLES
2.1	INTRODUCTION
2.2	ETHICS DUTY OF CONFIDENTIALITY CONTRASTED
2.3	SOCIETAL BENEFITS AND COSTS OF THE PRIVILEGE
2.4	THE PRIVILEGE'S ABSOLUTE PROTECTION
2.5	CLIENTS' AND LAWYERS' INABILITY TO CREATE OR DISCLAIM PRIVILEGE PROTECTION
2.6	CONSENSUS FORMULATION
2.7	KEY ELEMENTS OF THE PRIVILEGE
2.8	TYPES OF PRIVILEGED COMMUNICATIONS
2.9	CURRENT TRENDS AND THE FUTURE
CHAPTER 3: CLIENTS: INTRODUCTION AND BASIC PRINCIPLES
3.1	INTRODUCTION
3.2	EXISTENCE OF AN ATTORNEY-CLIENT RELATIONSHIP
3.3	CLIENT'S ACTIONS AND UNCOMMUNICATED STATEMENTS
3.4	CLIENT'S OWNERSHIP OF THE PRIVILEGE
CHAPTER 4: CLIENT RELATIONSHIPS
4.1	INTRODUCTION
4.2	PROSPECTIVE CLIENTS
4.3	INDIVIDUAL CLIENTS
4.4	GOVERNMENT ENTITIES AS CLIENTS
4.5	NON-CORPORATE INSTITUTIONAL CLIENTS
CHAPTER 5: JOINT CLIENTS
5.1	INTRODUCTION
5.2	NUMBER OF JOINTLY REPRESENTED CLIENTS
5.3	EXISTENCE OF A JOINT REPRESENTATION
5.4	EFFECT OF A JOINT REPRESENTATION: ETHICS RULES
5.5	EFFECT OF A JOINT REPRESENTATION: PRIVILEGE PRINCIPLES
5.6	WAIVER IN JOINT REPRESENTATIONS
5.7	ADVERSITY AMONG JOINTLY REPRESENTED CLIENTS
5.8	COMPARISON TO COMMON INTEREST AGREEMENTS
CHAPTER 6: CORPORATE CLIENTS
6.1	INTRODUCTION
6.2	DEFINING THE "CLIENT" WITHIN A CORPORATE ENTITY
6.3	COMMUNICATIONS WITHIN A CORPORATE FAMILY
6.4	EFFECT OF CORPORATE STOCK TRANSACTIONS
6.5	EFFECT OF CORPORATE ASSET TRANSACTIONS
6.6	REPRESENTATION OF CORPORATE AFFILIATES IN THE TRANSACTION
6.7	AGREEMENTS ALTERING THE PRIVILEGE'S OWNERSHIP
6.8	BANKRUPT AND DEFUNCT CORPORATIONS
6.9	SEPARATE AND JOINT REPRESENTATIONS OF EMPLOYEES
6.10	UPJOHN STANDARD FOR COMMUNICATIONS
6.11	"NEED TO KNOW" STANDARD FOR COMMUNICATIONS
6.12	COMMUNICATIONS WITH FORMER EMPLOYEES
6.13	COMMUNICATIONS WITH INDEPENDENT CONTRACTORS
6.14	COMMUNICATIONS WITH AGENTS/CONSULTANTS
6.15	RIGHT TO PRIVILEGED COMMUNICATIONS
CHAPTER 7: THE "FIDUCIARY EXCEPTION"
7.1	INTRODUCTION
7.2	HISTORIC TRUST PRINCIPLE
7.3	SHAREHOLDERS' RIGHT TO PRIVILEGED COMMUNICATIONS
7.4	NAMING THE EXPANDED DOCTRINE
7.5	COURTS' CONTINUING DEBATE ABOUT APPLICABILITY
7.6	ABSENCE OF "GOOD CAUSE" REQUIREMENT
7.7	EXAMPLES TO WHICH EXCEPTION APPLIES
7.8	EXAMPLES TO WHICH EXCEPTION DOES NOT APPLY
7.9	LIMITATION TO FIDUCIARY FUNCTIONS
7.10	"SETTLOR EXCEPTION"
7.11	"LIABILITY EXCEPTION"
7.12	OTHER FIDUCIARY EXCEPTION ISSUES
7.13	APPLICATION TO LAW FIRMS
CHAPTER 8: CLIENT AGENTS/CONSULTANTS
8.1	INTRODUCTION
8.2	CHARACTERIZATION OF CLIENT AGENTS
8.3	CLIENT AGENTS NECESSARY TO TRANSMIT COMMUNICATIONS
8.4	DEFINING THE LEVEL OF NECESSITY
8.5	CLIENT AGENTS WITHIN PRIVILEGE PROTECTION
8.6	CLIENT AGENTS OUTSIDE PRIVILEGE PROTECTION
8.7	IMPORTANCE OF A CHOICE OF LAW ANALYSIS
8.8	"FUNCTIONAL EQUIVALENT" DOCTRINE
8.9	CHANGE IN AGENTS' ROLES
8.10	CLIENT AGENTS VERSUS LAWYER AGENTS
8.11	APPLICATION OF THE WORK PRODUCT DOCTRINE
8.12	IMPORTANCE OF EDUCATING CLIENTS
CHAPTER 9: LAWYERS
9.1	INTRODUCTION
9.2	NONLAWYERS
9.3	PATENT AGENTS
9.4	NONLAWYERS THOUGHT BY CLIENTS TO BE LAWYERS
9.5	LAWYERS NOT ABLE TO PRACTICE LAW
9.6	MULTIJURISDICTIONAL PRACTICE ISSUES
9.7	IN-HOUSE LAWYERS
9.8	FOREIGN NONLAWYERS
9.9	FOREIGN LAWYERS
9.10	WORK PRODUCT DOCTRINE CONTRASTED
CHAPTER 10: LAWYER AGENTS/CONSULTANTS
10.1	INTRODUCTION
10.2	PRIVILEGE PROTECTION FOR LAWYER AGENTS
10.3	COMPARISON TO CLIENT AGENTS
10.4	LAWYER AGENTS TRANSMITTING PRIVILEGED COMMUNICATIONS
10.5	OTHER LAWYER AGENTS
10.6	SCOPE OF AVAILABLE PROTECTION
10.7	PROTECTED LAWYER AGENTS VERSUS UNPROTECTED CLIENT AGENTS
10.8	NONDISPOSITIVE FACTORS
10.9	"NEED" FOR THE AGENT'S ASSISTANCE
10.10	BEST PRACTICES
10.11	LAWYER AGENTS INSIDE THE PRIVILEGE
10.12	LAWYER AGENTS OUTSIDE THE PRIVILEGE
10.13	"MORPHING" OF A LAWYER AGENT ROLE
10.14	LAWYER AGENTS PLAYING DUAL ROLES
10.15	NON-TESTIFYING EXPERTS
10.16	LAWYER AGENT'S ROLE IN WORK PRODUCT DOCTRINE PROTECTION
CHAPTER 11: UNPROTECTED BACKGROUND INFORMATION
11.1	INTRODUCTION
11.2	COMMUNICATIONS ABOUT BACKGROUND INFORMATION
11.3	FACT OF THE REPRESENTATION
11.4	GENERAL SUBJECT MATTER OF THE REPRESENTATION
11.5	UNPROTECTED FEE INFORMATION
11.6	PROTECTED FEE INFORMATION
11.7	LAWYERS' BILLS
11.8	BACKGROUND FACTS ABOUT ATTORNEY-CLIENT COMMUNICATIONS
11.9	SUBJECT MATTER OF ATTORNEY-CLIENT COMMUNICATIONS
CHAPTER 12: CONTENT AND "COMMUNICATION" ELEMENT
12.1	INTRODUCTION
12.2	APPROACH OF THIS OUTLINE
12.3	FORMS OF TRANSMISSION AND SUBSTANCE
12.4	CLIENTS' ACTS
12.5	LAWYERS' ACTS
CHAPTER 13: CONTENT: LEGAL ADVICE REQUIREMENT
13.1	INTRODUCTION
13.2	COMMON MISPERCEPTIONS ABOUT THE PRIVILEGE
13.3	COMMUNICATIONS DESERVING PRIVILEGE PROTECTION
13.4	BASIC PRINCIPLES
13.5	ANALYZING EACH COMMUNICATION
13.6	ANALYZING EACH COMMUNICATION
CHAPTER 14: ANALYZING THE LAWYER'S ROLE
14.1	INTRODUCTION
14.2	LAWYER'S ROLE IS NOT DISPOSITIVE
14.3	LAWYERS INVOLVED IN INVESTIGATIONS
14.4	LAWYERS INVOLVED IN OTHER MATTERS
14.5	IN-HOUSE LAWYERS
14.6	LAWYERS AS CONDUITS TO OR FROM CLIENTS
14.7	WORK PRODUCT
CHAPTER 15: BUSINESS AND OTHER NONLEGAL ADVICE
15.1	INTRODUCTION
15.2	DISTINGUISHING BETWEEN LEGAL AND BUSINESS ADVICE
15.3	APPLYING THE "PRIMARY PURPOSE" TEST
15.4	WIDESPREAD INTRACORPORATE CIRCULATION
15.5	OTHER TYPES OF NONLEGAL ADVICE
CHAPTER 16: CLIENT-TO-LAWYER COMMUNICATIONS
16.1	INTRODUCTION
16.2	UNCOMMUNICATED CLIENT DOCUMENTS
16.3	CLIENT-TO-CLIENT COMMUNICATIONS
16.4	CLIENT'S EXPLICIT OR IMPLICIT REQUEST FOR LEGAL ADVICE: INTRODUCTION
16.5	UNPROTECTED HISTORICAL FACTS
16.6	PRE-EXISTING DOCUMENTS RECEIVED FROM CLIENT
16.7	CLIENT'S NON-SUBSTANTIVE COMMUNICATIONS
16.8	CLIENT COMMUNICATIONS RELAYING HISTORICAL FACTS
16.9	REVIEW OF DRAFT DOCUMENTS
16.10	DRAFTS CLIENTS INTEND TO DISCLOSE
16.11	CLIENTS' ACTS AFTER ADVICE IS RECEIVED
CHAPTER 17: LAWYER-TO-CLIENT COMMUNICATIONS
17.1	INTRODUCTION
17.2	UNCOMMUNICATED LAWYER DOCUMENTS
17.3	LAWYER-TO-LAWYER COMMUNICATIONS
17.4	RULES GOVERNING LAWYER-TO-CLIENT COMMUNICATIONS
17.5	LAWYERS' REQUESTS FOR FACTS FROM CLIENTS
17.6	HISTORICAL FACTS
17.7	HISTORICAL FACTS WITHIN THE LAWYER'S KNOWLEDGE
17.8	PRE-EXISTING DOCUMENTS THAT LAWYERS GIVE TO THEIR CLIENTS
17.9	LAWYER'S DOCUMENTS RELAYING FACTS TO CLIENTS
17.10	DRAFTS
17.11	PROTECTION FOR LAWYER-CREATED DRAFTS
17.12	LEGAL ADVICE: GENERAL RULES
17.13	PROTECTED AND UNPROTECTED LAWYER ADVICE
17.14	LAWYER'S ACTIONS
17.15	EXPECTATION OF DISCLOSURE
17.16	DISCOVERY ABOUT DISCOVERY
17.17	WORK PRODUCT PROTECTION
CHAPTER 18: THE CRIME-FRAUD EXCEPTION
18.1	INTRODUCTION
18.2	APPLICABILITY TO FUTURE WRONGDOING
18.3	WRONGDOING COVERED BY THE EXCEPTION
18.4	CONNECTION BETWEEN THE WRONGDOING AND THE COMMUNICATION
18.5	KNOWLEDGE OF THE WRONGDOING
18.6	APPLYING THE EXCEPTION
18.7	PROCESS FOR APPLYING THE EXCEPTION
18.8	LATER ATTEMPTS TO ESTABLISH THE EXCEPTION
18.9	FIRST STEP: IN CAMERA REVIEW
18.10	SECOND STEP: EVIDENCE AND HEARING
18.11	STANDARD FOR OVERCOMING THE PRIVILEGE
18.12	EXPANSION OF THE EXCEPTION
CHAPTER 19: PRESENCE OF THIRD PARTIES
19.1	INTRODUCTION
19.2	"EXPECTATION OF CONFIDENTIALITY" ELEMENT
19.3	CHARACTERIZING THIRD PARTIES' INVOLVEMENT
19.4	EXPECTATION OF CONFIDENTIALITY VERSUS WAIVER
19.5	SLOPPY HANDLING OF PRIVILEGED COMMUNICATIONS ..
19.6	UNINVITED THIRD PARTIES
19.7	INVITED THIRD PARTIES
19.8	INTRACORPORATE COMMUNICATIONS WITH CORPORATE EMPLOYEES
19.9	INVITED CLIENT AGENTS
19.10	FAMILY MEMBERS
19.11	INVITED LAWYER AGENTS
19.12	ELECTRONIC COMMUNICATIONS
19.13	PERSONAL COMMUNICATIONS ON WORK COMPUTERS
19.14	SLOPPY DESTRUCTION OF PRIVILEGED COMMUNICATIONS
19.15	WORK PRODUCT DOCTRINE
CHAPTER 20: THE JOINT DEFENSE/COMMON INTEREST DOCTRINE
20.1	INTRODUCTION
20.2	COMMON INTEREST DOCTRINE VERSUS JOINT REPRESENTATIONS
20.3	HISTORY OF THE COMMON INTEREST DOCTRINE
20.4	NATURE OF THE PROTECTION
20.5	LITIGATION ELEMENT
20.6	CREATION OF THE PROTECTION
20.7	TYPES OF COMMON INTEREST SUPPORTING AGREEMENT
20.8	DEGREE OF COMMONALITY REQUIRED
20.9	LAWYERS' INVOLVEMENT
20.10	COURTS' APPLICATION OF THE DOCTRINE
20.11	EXAMPLES OF ASSERTIONS OF THE DOCTRINE
20.12	DANGER OF A SUBJECT MATTER WAIVER
20.13	APPLICABILITY IN THE INSURANCE CONTEXT
20.14	LATER

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