Preservation and Waiver of The Attorney-Client Privilege Travis J. Broussard

ATTORNEY-CLIENT PRIVILEGE The Oldest Privilege Upjohn Co. v. U.S., 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66. L.Ed. 584 (1981).

PURPOSE Full and Frank communication between counsel and client. Upjohn Co. v. U.S., 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66. L.Ed. 584 (1981). Public Policy

APPLICATION Giving of information and professional advice Communications, not facts Refusal to disclose relevant facts not permissible

EXCEPTIONS TO THE PRIVILEGE La. C.E. art. 506(C): Advices sought to plan a crime or fraud. Communication made in furtherance of crime or fraud. Communication is relevant to an issue of breach of duty by the lawyer or the client. Question of authenticity or capacity concerning a document the lawyer signed or notarized. Common interest among two or more clients when the communication is offered against one of the clients.

WAIVER The privilege may be waived by: 1. Disclosure 2. Action against counsel 3. Failure to Assert Privilege

WAIVER By the Client only. By words or conduct expressing an intention to waive a known right. By conduct of the client that creates unfairness in maintaining the privilege. Partial disclosure Pretrial Partial disclosure Placing Privileged Communications at issue

PARTIAL DISCLOSURE Part of a larger body of privileged communications waives privilege as to all communications on the same subject matter. Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138, 1143 (La. 1987) Introduction of privileged documents into evidence waives the privilege against otherwise privileged testimony or documents on the same subject matter. Id.

PRETRIAL PARTIAL DISCLOSURE “Anticipatory waiver” Not as unfair as a partial disclosure at trial Preservation through stipulation. Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138, 1143 (La. 1987) (citing International Tel. & Tel., 60 F.R.D. at 186).

PLACING-AT-ISSUE WAIVER Pleading claim or defense in such a way that will inevitably require use of a privileged communication to prevail. All communications on the same subject are waived.

The Lawyer Witness 508 Contradictory Hearing to Evaluate Whether: 1. Essential to the case? 2. Sought for harassment? 3. Subpoena drafted with particularity and reasonably limited to subject matter. 4. Practical alternative?

The Lawyer Witness Counsel of Record only if extraordinary circumstances Only after contradictory hearing