Chapter 4 T HE A TTORNEY C LIENT P RIVILEGE (ACP) & T HE W ORK PRODUCT DOCTRINE A. C ONFID ’ Y & ACP C OMPARED

Ch. 4 Attorney-Client Privilege A.Compare Confidentiality & ACP Ethical duty of confidentiality ACPACP

A. & B. Ethical Duty & Privilege Compared; Elements of ACP pp Testimonial vs. ethical duty – Litigation context v. general ethical duty Narrower scope Economic value to lawyers; competitive advantage Policy: undercuts on truth-seeking function of courts – Invoked when opponent wants something relevant & harmful to your side Source: federal & state common law; sometimes statutory

B. Elements pp Communication (must be communicative element) 2.Between privileged persons & their agents; (NO nonprivileged persons present or told); Goes bothways (>---<) 3.Made in confidence (in private) 4.For purpose of seeking legal assistance (unprivileged if for business or other purpose,)

Documents p C c/n park damaging docs w/ L to avoid other’s access, i.e., privilege doesn’t shield underlying facts. 2.But if C prepares doc for purpose of communicating w/ L (log on what happened), w/in ACP.

C. Client Identity pp Usually not privileged, except: L can be compelled to reveal who represents if C engaged in ongoing wrong (deposition, subpoena, grand jury, etc.) Jenkins & Gilchrist (Dallas ‘07); Sidley & Austin (Chicago ‘04)(firms compelled to provide IRS w/ list of clients who bought sham tax shelters) p. 243, fns When disclosure of C identity would incriminate in the criminal activity for which C sought legal advice Baird v. Koerner (9 th ‘60)(anonymous tax payment); Dietz v. Doe (Wash. Ct. App. ‘97)(civil) & similar FL. (crim.)(hit & run, C consulted L b/c road dark, uncertain; likely privileged) p. 242, n. 28

D. Waiver pp ACP belongs to C (or successor) authorized to direct L whether to waive (express & apparent authority) e.g. OK Girl Scouts, Weintraub 2. Rstmt. §78 (3) Fail to timely assert when privileged info. sought & provided (W by inaction) 3. Inadvertent disclosure: huge issue, especially in e-discovery In re Christus Spohn Hosp., 222 S.W. 3d 434 (Tex., 2005) (under facts, no “snap-back” of inadvertently produced document) RPC 5.3 See also, Granada. Synonym “clawback” Rsmt. §79 cmt. h.... Waiver does not result if the client or other disclosing person took precautions reasonable in the circumstances to guard against such disclosure. (clawback possible if reasonable precautions taken before, promptly reassert.)

D. Waiver pp When C puts privileged communication into issue (malpractice, ineffective assistance, fee dispute, discipline) Usually, disclosing portion of single communication waives the balance of that communication as it relates to the subject matter of partial waiver.

D. Waiver pp. 247 Compliance with Court Order to produce communication claimed as privileged. -test ruling, request reconsideration, to avoid being held in contempt. Maness v. Meyers, 95 S.Ct. 584 (1975)(5 th Amend. context) -Text p. 247 : if turnover pursuant to ct order, does not waive issue for purposes of appeal from final order **Mohawk Industries v. Carpenter, 130 S.Ct. 599 (2009) (magistrate & trial court disclosure orders rejecting ACP NOT appealable interlocutory order)

E. Crime-fraud exception (CFE) pp § 82. Client Crime or Fraud The attorney-client privilege does not apply to a communication occurring when a client: (a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or (b) regardless of the client’s purpose at the time of consultation, uses the lawyer’s advice or other services to engage in or assist a crime or fraud.

***Purcell v. Dist. Atty, 676 N.E.2d 436 (Mass. 1997) p. 251 Why did C consult L? What did he tell L? L called police, imminent danger. Ct: no breach of ethical duty, but D.A. couldn’t compel L to testify. Reasonable balance?

Skipped, not assigned Tobacco litigation pp Companies channeled medical research through legal departments, Office of General Counsel Released those saying positive health effects; kept secret those showing adverse effects Several cases tested privilege, Congressional hearings. Courts: either unprivileged or CFE.

Prob. 4-2 The Fatal Bus Crash pp CFE procedure, U.S. v. Zolin (S.Ct. 1989) p. 255, n. 56 Travel insurance; carrier denied coverage claiming death caused by withdrawn life support, not bus crash. π sued carrier for policy limit + tort (intentional infliction of emotional distress) π sought discovery of all written communications between ΔL & carrier; Δ: ACP Now: burden on party seeking to show comes w/in exception, π claimed CFE. Ct, after in camera review, ordered production.

In re Grand Jury, 162 F.3d 670 (D.C. 1998) Monica Lewinsky > Charles Ogletree (affidavit to avoid testifying in Ark. Sexual harassment case)

F. Death of Client pp Swidler & Berlin v. U.S. (S.Ct. ‘98) “travelgate” investigation. Vince Foster Deputy White House Counsel met w/ private L, then committed suicide. Grand jury subpoenaed L’s notes S.Ct. (6-3) held, under federal common law, privilege survives C’s death. **O’Connor dissent (ACP shouldn’t be absolute bar), see, e.g., In re Miller II, 595 S.E. 2d 120 (NC 2004)(love triangle, H poisoned. Lover consults L, commits suicide; wife (W) suspect. L subpoenaed, asserts ACP. Held, information Lover shared w/ L re third party (T/P) involvement not privileged where d/n implicate Lover)

H. Privilege for Corporations pp Upjohn v. U.S. (S.Ct. ‘81) fed. C.l. Internal investigation of foreign bribes, gave SEC preliminary report that “questionable payments.” IRS summons: HANDOVER ALL questionnaires, memos, interview notes. D. Ct. ordered production, 6 th Cir. aff’d (narrow control group) Issue (I): scope of privilege (ALL –ees, only control group, or uncertain few)? Cost/benefit analysis? new standard “subject matter of communication” p. 265 & n. 80 Okla. Ev. Code: control group test p. 270, n. 91

Scope of ACP for Law Firm In-House Counsel Rstmt. §70 Who are privileged persons? Corporations (Corps.) artificial entities, can only act through human agents. WHO is the Client: importance of correct identifying See, RPC 1.13 entity as C, runs throughout Chapters 5-9 on Conflicts of Interest (COI)

H. Privilege for Corporations pp Prob. 4-4 Worldwide Bribery Political battle since 2001 between DOJ, feds & ABA (w/ participation of Chamber of Commerce & ACLU) “erosion of ACP,” whether corp. gets “cooperation credits” in plea bargaining if d/n waive ACP. N.B. Congress may have changed cooperation credits. UNCERTAIN future.

Prob. 4-4 Worldwide Bribery, DOJ arm- twisting corps. to waive ACP pp , Advise Pres. Patel. WAIVE privilege, possibly subjecting her & others to criminal prosecution? 1.Give both summaries & bribery records. 2.Give only records detailing bribery, NOT interview summaries. 3.Give nothing, assert ACP, play hardball. 4.Other alternatives?

St. Simons Waterfront, LLC v. Hunter, Maclean, et al., 746 S.E.2d 98 (GA 7/13) Exam question shows high drama; grading sheet as example of my grading style. GA Supreme Court respected. 1.Refused to “engraft” RPC into common law of evidence; opinion discussed how ACP should be interpreted same as other privilege law. 2.Remanded for factual findings.

Compare, RFF Family Partnership v. Burns & Levinson, LLP, 991 N.E.2d 1066 (7/13) Facts: developed. Allowed interlocutory appeal (state procedural law); S.Ct. assumed juris. Over intermediate app. Ct. ***¶ 1, p. 1. I: whether confid’l communications between firm Ls & person designated as in-house counsel re LM by current C are protected by ACP?

RFF Family Partnership v. Burns & Levinson, LLP, 991 N.E.2d 1066 (7/13) H: yes, provided 1) firm designated 1 or more Ls in firm to serve as in-house counsel; 2) such Ls have done NOTHING on same/similar client matters; 3) C NOT BILLED for such Ls work; 4) communications made in confidence & in fact kept in confidence. Disposition: affirm decision below, upholding ACP.

Q: What did Burns & Levinson (B&L) do RIGHT? 1.Upon receiving Prince Lobel’s (PL) threat to sue got RFF’s principal to confirm in writing that PL not authorized. See RPC 1.2(a). 1.Promptly asserted ACP when noticed for deposition, moved for protective order, sought interlocutory review. Consistent

Key Language in opinion “Uncharted jurisprudential waters” p. 6, left col. “Uncertain privilege... little better than no privilege at all.” Upjohn p. 6, bottom right col. *** Where law firm designates in-house counsel on ethical, regulatory & risk management issues... crucial to reputation & financial success... serves same purpose as [other artificial entities]: guarantees confid’y... to ensure that all employees provide information needed to obtain sound legal advice.” p. 8, left col.

Rejects asserted EXCEPTIONS to ACP When firm acting as fiduciary (overbroad, exception would swallow the rule) pp Current C exception pp.13-17, conclusion p. 17 ***willing to incorporate RPC in analysis of ACP; considers RPC 1.6, 1.7, 1.10, 5.1 in logical ways. Law, as in architecture, form should follow function... Cs get better representation when Ls can safely confer w/ in-house counsel without need to drop C, 1.10 (imputed DQ) n/a here; Current C exception yields dysfunctional result. Pp benefits to C, Increased firm compliance w/ ethical R’s. See qualifications.