MASTERING ESSENTIAL ASPECTS OF THE ATTORNEY-CLIENT PRIVILEGE, WORK PRODUCT IMMUNITY, AND LAWYERS' ETHICAL DUTY OF CONFIDENTIALITY
| Jurisdiction | United States |
(Sept 2018)
MASTERING ESSENTIAL ASPECTS OF THE ATTORNEY-CLIENT PRIVILEGE, WORK PRODUCT IMMUNITY, AND LAWYERS' ETHICAL DUTY OF CONFIDENTIALITY
AON Risk Solutions
Overland Park, KS
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DOUGLAS R. RICHMOND is Managing Director of Aon's Professional Services Group. Aon's Professional Services Group is the world's leading broker of insurance for law firms. Doug consults with Aon's 295 law firm clients on professional responsibility and liability issues. Before joining Aon, Doug was a partner with Armstrong Teasdale LLP in Kansas City, Missouri (1989-2004), where he had a national trial and appellate practice. In his time at Armstrong Teasdale, he tried over 40 major cases as "first chair" and was often engaged to handle appeals of cases tried by other lawyers. In 1998, he was named the nation's top defense lawyer in an insurance industry poll as reported in the publications Inside Litigation and Of Counsel. He is a member of the ABA's Standing Committee on Ethics & Professional Responsibility (2016-19) and the lead author of the book Professional Responsibility in Litigation (2d ed. 2016). Doug earned his J.D. at the University of Kansas, an M. Ed. from the University of Nebraska, and his B.S. from Fort Hays State University.
I. INTRODUCTION
Confidentiality is central to the practice of law. Indeed, confidentiality is a good part of the bedrock on which both litigation and transactional practices are built.
Lawyers' duty to protect client information is variously embodied and enforced: the attorney-client privilege is a critical component of evidence law, the work product doctrine provides important immunity against the discovery of attorneys' files and mental impressions in litigation, and ethics rules make confidentiality a professional responsibility concern. In fact, the attorney-client privilege is not absolute, it is narrowly construed and enforced, it is laden with exceptions, and it is easily waived. In many instances lawyers too casually assume the application of the privilege, or do not appreciate the ease with which it may be lost. Similarly, lawyers often are too quick to assume the application of work product immunity and overlook the fact that the client has the ability to waive it. Finally, many lawyers unfortunately do not appreciate the broad confidentiality obligation imposed by rules of professional conduct. It is against this backdrop that these materials briefly examine key contours of the attorney-client privilege, work product doctrine, and lawyers' ethical duty of confidentiality`
II. PRIVILEGE, IMMUNITY, AND CONFIDENTIALITY
Confidential communications between attorneys and clients are protected from discovery by the attorney-client privilege and often by work product immunity. These doctrines are separate and distinct from lawyers' ethical duty of confidentiality.
A. The Attorney-Client Privilege
The attorney-client privilege is one of the oldest common law privileges protecting confidential communications,1 and it is now widely codified. "The privilege
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allows for open communications between an attorney and his or her client, free from apprehension of compelled disclosures, thereby enabling the attorney to gather complete and accurate information about the client's situation."2 Recognizing the privilege also encourages the public to seek early legal assistance.3
The Restatement (Third) of the Law Governing Lawyers succinctly articulates the elements of the attorney-client privilege.4 Section 68 provides that the privilege may be asserted "with respect to: (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 "Privileged persons" include the client or prospective client, the lawyer, agents of the client or prospective client and the lawyer who facilitate communications between them, and agents of the lawyer who assist in the client's representation.6
The attorney-client privilege belongs to the client.7 When a lawyer invokes the privilege to safeguard confidential communications, she does so as the client's agent--not as a holder of the privilege. Similarly, if the lawyer waives the privilege, she does so only as the client's agent.8
The privilege attaches to initial consultations between attorneys and prospective clients, even if the client does not ultimately retain the attorney.9 Thereafter, the client
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may invoke the privilege any time during the attorney-client relationship or after the relationship terminates.10 The privilege even survives the client's death.11
Because the privilege attaches to communications, an otherwise privileged exchange between a client and a lawyer containing information that could be discovered by other means remains shielded from discovery.12 There is, however, no blanket privilege covering all attorney-client communications.13 The client must assert the privilege with respect to each communication in question, and the court hearing the matter must scrutinize each communication independently.14 The party asserting the attorney-client privilege bears the burden of establishing its application to particular communications.15 This is a fact-specific inquiry. The form of the communication between the client and the lawyer is irrelevant to attorney-client privilege analysis as long as the communication otherwise qualifies as privileged. For example, the attorney-client privilege attaches to telephone calls, personal conversations, correspondence, notes, text messages, and e-mail messages.16 Nonverbal communications between clients and lawyers--such as nods, gestures, and even silence--may be privileged.17
A party seeking to protect written or electronic communications from discovery does not have to identify them as "privileged" or "confidential" for the attorney-client
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privilege to attach.18 On the other hand, a party cannot shield a communication from discovery simply by branding it "confidential" or "privileged."19 Similarly, a client cannot cloak a communication in the attorney-client privilege simply by routing it through a lawyer or by copying a lawyer on the communication.20 The test is whether a communication satisfies the elements necessary to establish the privilege--not how it is identified, labeled, or distributed.
The attorney-client privilege benefits organizations as well as individuals. For example, corporations can assert the attorney-client privilege,21 as can partnerships,22 limited liability companies,23 governmental bodies,24 and trusts.25 Organizations may claim the privilege with respect to communications with in-house counsel.26
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In the organizational context, the most common problem is determining who among the entity's employees speaks on its behalf. Courts have traditionally applied two tests to analyze organizational privilege claims: the "control group" test and the "subject matter" test. A few courts have adopted a third test that closely tracks the subject matter test, and which is sometimes called the "modified subject matter test."27
Applying the control group test, communications must be made by an employee who is positioned "to control or take a substantial part in the determination of corporate action in response to legal advice" for the privilege to attach.28 Only these employees qualify as the "client" for attorney-client privilege purposes.29 The control group test essentially requires that the employee an attorney communicates with be a member of senior management for the communication to be privileged. The control group test has been criticized because it chills corporate communications, frustrates the purpose of the privilege by discouraging subordinate employees from sharing important information with corporate counsel, makes it difficult for corporate counsel to properly advise their clients and to ensure their clients' compliance with the law, and yields unpredictable results.30 Nonetheless, a handful of jurisdictions adhere to this test.31
Some courts, perhaps recognizing the difficulties caused by strict application of the control group test, have loosened it. In Becker v. ConAgra Foods, Inc.,32 for example, the court explained that under Illinois law, "[t]he privilege extends to a control group made up of those who act as decision-makers and those whose advisory role is such that a decision would not normally be made without his or her input, and whose opinion in fact forms the basis of any final decision by those with authority."33 Thus, under this formulation of the control group test, the control group may extend beyond the actual corporate decision-makers.34 Even under this more liberal interpretation,
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however, the control group test does not protect as privileged lawyers' communications with employees who merely supply a corporation's decision-makers with facts.35
The subject matter test affords much broader privilege protection to corporate clients. Under the subject matter test as originally conceived, a communication with any employee may be privileged if it is intended to secure legal advice for the corporation, the employee is communicating with the lawyer at a superior's request or direction, and the employee's responsibilities include the subject of the communication.36 Applying this test, the employee's position or rank is irrelevant to the privilege analysis.37 The Supreme Court embraced the subject matter approach in Upjohn Co. v. United States,38 although it declined to formulate a specific test.39 The Upjohn court's reticence has since led courts to reason that there are two forms of the subject matter test.40 Regardless, it is clear following Upjohn that under the subject matter test, however it is articulated, a lawyer's confidential communications with any employee are privileged when they...
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