Vol. 29, No. 1 #1 (February 2006). ETHICALLY SPEAKING.

• Author: By John M. Burman

Wyoming Bar Journal

2006.

Vol. 29, No. 1 #1 (February 2006).

ETHICALLY SPEAKING

WYOMING LAWYERFebruary 2006/Vol. 29, No. 1ETHICALLY SPEAKINGThe Attorney-Client Privilege: Part II, Waiver and ExceptionsBy John M. Burman

Ten years ago this month, a column entitled "Ethical Issues" appeared for the first time in the WYOMING LAWYER.(fn1) In that inaugural column, I observed that "there is a need for some mechanism to make information about ethics available to attorneys."(fn2) At that time, no formal mechanism existed to request an ethics opinion from the State Bar. Although such a procedure now exists, at least in rule, I am not aware that it has been used, and it is unlikely that the procedure that was created as part of the 2003 amendments to the Disciplinary Code will be able to provide many opinions as the responsibility for drafting opinions was simply added to the host of obligations that Bar Counsel already shoulders.(fn3) In the first column, I wrote that my hope was to provide "a forum to raise and discuss ethical issues, and provide suggestions for additional research and guidance."(fn4) I recall telling my wife that I thought I would write the column for a few years, but I was not sure how long there would be issues to address. How wrong I was. Fifty-nine columns later (I have missed two issues), the supply of ethical issues seems to have grown. I am confident now in saying that I expect to run out of steam long before the supply of ethical issues about which to write is exhausted. And while I hope the columns are useful to you, I cannot tell you how much I've learned. Every time I sit down to write, I generally think I understand the topic, but I soon learn that I only think I understand it, I actually don't. Writing these columns has, therefore, been an extremely valuable experience for me.

Before proceeding with this month's topic, I want to thank the Wyoming Bar for its willingness to publish what now totals over a quarter of a million words about ethics-about topics that I generally choose, though I do get suggestions. I will report, too, that all the previous columns have been revised, expanded, and some new topics have been added, to a book to be entitled "Professional Responsibility in Wyoming." The book is nearing completion and should be published this year, again courtesy of the Wyoming Bar.

Even with a willing publisher, an author needs an audience. I expected my main audience to be Wyoming lawyers and judges, and so it has been. But in this era of computer research, one needs to be careful what one writes. Imagine my surprise to learn that columns have been cited by the Florida Court of Appeals(fn5) and the Ohio Supreme Court.(fn6) So thank you all for reading. The last ten years have flown by, and I look forward to the next ten.

Loss of the Attorney-Client Privilege

The last article which appeared in what is now called "Ethically Speaking" addressed the basics of the attorney-client privilege. It ended with the following observation:

The protection of attorney-client privilege is far from absolute. Even when the privilege "has struggled into existence, it leads a fragile life." [footnote omitted] The privilege may be lost through a waiver, or a communication may be subject to an exception. The next column will address those issues.(fn7)

Although the privilege exists to promote important public policies (most notably, "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."(fn8)), the privilege will yield to "strong public policy."(fn9) Since the privilege can be easily lost (generally referred to as "waived," either intentionally or otherwise) and since it belongs to clients, lawyers need to know how and when that can happen, how to ensure that any waiver is done properly, and what they can do to prevent the privilege from being waived inadvertently. In addition, lawyers need to know which communications with a client are not subject to the attorney-client privilege at all because they fall within an exception.

The Attorney-Client Privilege Belongs to Clients, Not Lawyers.

As noted in the last column, the attorney-client privilege in Wyoming is codified in the Wyoming Statutes at 1-12-101, and the statute is regrettably spare.(fn10) One of the issues it does address, at least indirectly, is to whom the privilege belongs. "The attorney . . . may testify by express consent of the client . . . , and if the client . . . voluntarily testifies the attorney . . . may be compelled to testify on the same subject.(fn11)

Saying that an attorney may testify with the "consent of the client" is tantamount to saying the privilege belongs to the client. Such a construction is in line with the general rule. "It is certainly true that the attorney-client privilege belongs to [the client] . . ."(fn12) The client, therefore, or any authorized agent of the client, may waive the privilege.(fn13) Authorized agents include the attorney for the client.(fn14)

Waiver of the Attorney-Client Privilege

A waiver of the attorney-client privilege occurs when a communication which was or would have been privileged loses that status. And since the privilege belongs to a client, it stands to reason that the client should be the one to decide whether to waive it(fn15) (as discussed below, waiver may occur as the result of the attorney's actions, whether authorized or not). Any such waiver, as any decision involved in legal representation, must be an informed one."(fn16) If the client is an organization, the privilege belongs to the organization, which is the client.(fn17) The decision of whether to waive it, therefore, lies with the governing body of the organization(fn18) or "individuals empowered to act on behalf" of the organization.(fn19) Since the privilege belongs to the organization, a "dissident director. . . has no authority to pierce or otherwise frustrate the attorney-client privilege when such action conflicts with the will of 'management.'"(fn20)

In order to make an "informed decision" about whether to waive the privilege, the client must understand what waiver means, that once waived the communication will likely never be privileged again, and what the alternatives are to waiver. Although not required by the statute in Wyoming, or in most jurisdictions, the advisement of the consequences of waiver, as well as the client's consent thereto, should be in writing.

While a decision to waive the privilege should be an informed one, it often is not. Rather, the privilege is lost by the conduct of the client or the client's lawyer. That conduct may be with the intent, or at least the understanding, that the privilege will be lost, or waiver may be an unintentional and even unwanted result of some action or inaction of the client or the lawyer. Conduct which may result in waiver is discussed below.

The Presence of a Third Party

The...