C. 4 Lawyer's Duty of Confidentiality1 Professional Responsibility Ch. 4 The Lawyer’s Duty of Confidentiality Ch. 4 The Lawyer’s Duty of Confidentiality Disclosure and Waiver Disclosure and Waiver George W. Conk George W. Conk Adjunct Professor of Law & Senior Fellow Adjunct Professor of Law & Senior Fellow Stein Center for Law & Ethics Stein Center for Law & Ethics Room 409 Room

A barrier to discovery Not a rule of evidence Work-Product Privilege C. 4 Lawyer's Duty of Confidentiality2

Work-product privilege (N.J.) (c) … a party may obtain discovery of documents…and tangible things (c) … a party may obtain discovery of documents…and tangible things prepared in anticipation of litigation or for trial by or for another party (or its agent) prepared in anticipation of litigation or for trial by or for another party (or its agent) only upon a showing of substantial need of the materials in the preparation of the case and only upon a showing of substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. is unable without undue hardship to obtain the substantial equivalent of the materials by other means. C. 4 Lawyer's Duty of Confidentiality3

Work-product privilege (N.J.) The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. C. 4 Lawyer's Duty of Confidentiality4

Keeping secrets The attorney client privilege C. 4 Lawyer's Duty of Confidentiality5

Evidentiary Privileges – FRE 501 Common law privilege law governs “as interpreted in the light of reason and experience” by courts of the U.S. Common law privilege law governs “as interpreted in the light of reason and experience” by courts of the U.S. - except as modified by Constitution, federal statute, or Rules of Supreme Court - except as modified by Constitution, federal statute, or Rules of Supreme Court If state substantive law applies, state law of privilege governs If state substantive law applies, state law of privilege governs C. 4 Lawyer's Duty of Confidentiality6

In re New York Renu p. 325 Report of special master Is the communication privileged? Disclosures to non-lawyer agents of the representation C. 4 Lawyer's Duty of Confidentiality7

Renu Moisture-Loc Two chains Two chains 1) Corp and Exec to CEO, General Counsel and Hill & Knowlton PR firm Denied 1) Corp and Exec to CEO, General Counsel and Hill & Knowlton PR firm Denied 2) Corp exec to CEO re need to seek legal advice from GC Sustained 2) Corp exec to CEO re need to seek legal advice from GC Sustained 3) Hill and Knowlton suggest mechanism for redemption of defective items Denied 3) Hill and Knowlton suggest mechanism for redemption of defective items Denied C. 4 Lawyer's Duty of Confidentiality8

Privilege is in derogation of search for truth 1) Party asserting privilege has the burden of proof 1) Party asserting privilege has the burden of proof 2) Is a communication between attorney and advice-seeking client or 2) Is a communication between attorney and advice-seeking client or 3) Is attorney work product (notes, impressions, legal theories – not facts) 3) Is attorney work product (notes, impressions, legal theories – not facts) 4) Has not been disclosed to a stranger to the representation 4) Has not been disclosed to a stranger to the representation C. 4 Lawyer's Duty of Confidentiality9

`Kovel doctrine’ Disclosure to non-lawyers is protected IF 1) Communication’s predominant purpose is to seek legal advice 1) Communication’s predominant purpose is to seek legal advice 2) Disclosure limited to those with “need to know” advice of counsel 2) Disclosure limited to those with “need to know” advice of counsel 3) State privilege law applies in diversity or FTCA case 3) State privilege law applies in diversity or FTCA case 4) Communication to non lawyer must be necessary to promote the lawyer’s effectiveness 4) Communication to non lawyer must be necessary to promote the lawyer’s effectiveness C. 4 Lawyer's Duty of Confidentiality10

Is communication with a PR firm `necessary to the representation? 1) NO “a media campaign is not a litigation strategy” Haugh v. Schroder (2003) 1) NO “a media campaign is not a litigation strategy” Haugh v. Schroder (2003) 2) Foreign language – company needed help from PR firm Copper Market Anti-trust Lit (2001) 2) Foreign language – company needed help from PR firm Copper Market Anti-trust Lit (2001) 3) PR firm helped counsel “create an atmosphere” to influence prosecutor In Re. G.J. (2003) 3) PR firm helped counsel “create an atmosphere” to influence prosecutor In Re. G.J. (2003) 4) NY – waiver unless disclosure “absolutely necessary” to lawyer’s services 4) NY – waiver unless disclosure “absolutely necessary” to lawyer’s services C. 4 Lawyer's Duty of Confidentiality11

U.S. v. Hatcher (2003) p. 330 Because the inmates and their lawyers were aware that the conversations were being recorded they had no reasonable expectation of privacy Because the inmates and their lawyers were aware that the conversations were being recorded they had no reasonable expectation of privacy C. 4 Lawyer's Duty of Confidentiality12

Losing an existing right of confidentiality Waiver of the privilege C. 4 Lawyer's Duty of Confidentiality13

Development of F.R. Evid,. 502 – limitations on waiver of privilege Pre-rule case law: Pre-rule case law: 1) only intentional disclosure is a waiver 1) only intentional disclosure is a waiver 2) careless disclosure and no retrieval = waiver 2) careless disclosure and no retrieval = waiver 3) any inadvertent disclosure is a waiver 3) any inadvertent disclosure is a waiver C. 4 Lawyer's Duty of Confidentiality14

Fed. R. Evid. 502 Disclosure of communications or information covered by Attorney Client and Work Product Privileges a) Communication in a federal proceeding or to a federal office or agency a) Communication in a federal proceeding or to a federal office or agency b) Inadvertent disclosure b) Inadvertent disclosure c) In a state proceeding c) In a state proceeding d) Federal court order - may limit waiver d) Federal court order - may limit waiver e) party agreement - binds only parties unless incorporated in a court order e) party agreement - binds only parties unless incorporated in a court order C. 4 Lawyer's Duty of Confidentiality15

FRE 502 Inadvertent Disclosure not a waiver if the disclosure is inadvertent; the disclosure is inadvertent; the holder of the privilege or protection took reasonable steps to prevent disclosure; and the holder of the privilege or protection took reasonable steps to prevent disclosure; and the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). C. 4 Lawyer's Duty of Confidentiality16

FRCP 25(b)(5)(B) (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. C. 4 Lawyer's Duty of Confidentiality17

FRCP 25(b)(5)(B) After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; C. 4 Lawyer's Duty of Confidentiality18

FRCP 25(b)(5)(B) must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. C. 4 Lawyer's Duty of Confidentiality19