The 9th Circuit recently clarified the bounds of the attorney-client privilege. While the basic assessment of the privilege is simple (it protects confidential communications between attorneys and clients made for the purpose of giving legal advice), there is some confusion over how to treat communications that also serve a business purpose.
The purpose of the attorney-client privilege is to protect from discovery in civil litigation those "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice.".
The Supreme Court held, in a six to three opinion, that the common law attorney-client privilege survives the client's death. It also held there is no posthumous exception to this privilege for communications where relative importance to particular criminal litigation is substantial.
Communications to or from a lawyer that don’t seek or give legal advice are not privileged. So, for example, an attorney functioning as a business agent does not qualify for application of the attorney-client privilege.
Golden Trade was an extension of the Supreme Court's ruling in Upjohn Co. v. United States (1981), where the Court said that, “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.
The attorney-client privilege protects most communications between clients and their lawyers. But, according to the crime-fraud exception to the privilege, a client's communication to her attorney isn't privileged if she made it with the intention of committing or covering up a crime or fraud.
3 The defendant's right to compulsory process thus collides with the attorney-client privilege. When this collision occurs, a court must decide which right triumphs, and which must yield.
Ultimately, while many congressional committees do, in practice, recognize the importance of attorney-client privilege, Congress takes the position that its applicability to particular matters is determined by the congressional committee conducting the inquiry.
The attorney-client privilege is important to any lawsuit. But in some cases, the attorney-client privilege can be destroyed, either by design or by accident. What is the attorney-client privilege? In general, it means confidential communication between a client and her lawyer cannot be used in court.
Emailed correspondence between attorney and client is privileged. However, the client can take some actions which will waive this attorney client privilege.
4.2 Examples of competing rights situationsExample: A civil marriage commissioner objects to performing a marriage ceremony for a same-sex couple, claiming that it violates his religious beliefs. ... Example: A college professor's guide dog is affecting one of her students who has a severe allergy to dogs.More items...
The law also recognizes that rights have limits in some situations where they substantially interfere with the rights of others. The courts have said we must go through a process on a case-by-case basis to search for solutions to reconcile competing rights and accommodate individuals and groups, if possible.
The rights and freedoms protected by the Charter fall into 7 categories:Fundamental freedoms.Democratic rights.Mobility rights.Legal rights.Equality rights.Official Language rights.Minority language educational rights.
The privilege protects a lawyer-lobbyist's communications with a client who is seeking legal advice. So, the privilege cloaks communications where the lawyer-lobbyist gives advice that requires legal analysis of legislation. But the privilege does not cover all lawyer-lobbyist's communications with her client.
As the Court notes, the deliberative process privilege protects agencies from being forced to disclose documents that reflect advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.
The "Great Writ" of habeas corpus is a fundamental right in the Constitution that protects against unlawful and indefinite imprisonment. Translated from Latin it means "show me the body." Habeas corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power.
Jurisdiction. A courts power to hear a case and to issue a decision binding on the parties.
fourTypically, the Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a given state (if the state court decided a Constitutional issue). The Supreme Court has its own set of rules. According to these rules, four of the nine Justices must vote to accept a case.
In some situations, both state and federal courts can have jurisdiction over an issue. For example, cases that involve parties in two different states, referred to diversity jurisdiction, may qualify to proceed in either federal or state courts.
The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
To recap: Special Counsel Robert Mueller was appointed by Deputy Attorney General Rod Rosenstein ...
To overcome the presumption in favor of privilege, Mueller might argue that Cohen’s communications with Trump fail Professor John Henry Wigmore’s generally accepted rules necessary to establish a relation-based privilege:
To recap: Special Counsel Robert Mueller was appointed by Deputy Attorney General Rod Rosenstein to investigate allegations of collusion between the Trump campaign and the Russian government in the 2016 presidential election. Because Mueller’s mandate is limited to the allegations of collusion or any other matters that arise directly from the investigation, what he may have uncovered on Cohen may not have related to Russian interference in the election, leaving him unsure of whether he had the authority to pursue it. So Mueller referred the case to the Southern District of New York (SDNY), who then went up the chain to Rosenstein.
If the Trump’s communications with Cohen were tainted by crime or fraud, Mueller could argue that privilege does not apply. The Supreme Court has not proposed any decisive tests for when the “crime-fraud” exception applies, so the D.C. District Court will have to rule on any evidence that Mueller brings on a case-by-case basis.
Edward - Excellent post! Also - as trump states he did not know about the payments and why they were made then Stormy has not violated the nondisclosure contract as it must not be valid.
This whole mess came about by the fake dossier paid for by "the witch" and DNC and used to get illegal FISA warrants; i.e., "fruit from the poisonous tree . . . . . "
The scope of the attorney-client privilege is in part broader and in part narrower than other major civil discovery privileges traditionally recognized as incorporated into Exemption 5.
Although it initially may seem peculiar to think of federal agencies as "clients" seeking legal advice, it is certainly true that these entities -- no less so than individuals and corporations -- require confidential legal advice from their attorneys in order to function effectively. Taking note of this fundamental need, the courts have uniformly held that federal agencies may enter into privileged attorney-client relationships with their lawyers. See, e.g., Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980) (it is "clear that an agency can be a 'client' and agency lawyers can function as 'attorneys' within the . . . privilege"). See generally Note, The Applicability and Scope of the Attorney-Client Privilege in the Executive Branch of the Federal Government, 62 Boston U.L. Rev. 1003 (1982).
During oral arguments at the Supreme Court, Philip Padovano, representing Worley, said the attorney-client privilege should be interpreted broadly. In response to a question from Justice Charles Canady, Padovano noted that F.S. §90.502 in the evidence code “says a communication between a lawyer and a client — doesn’t say legal advice; it says communication — is confidential if it is not intended to be disclosed to third persons.”
In its initial brief to the court, Worley argued, that “ [T]his decision undermines the sanctity of the attorney-client privilege by creating a need/want exception to the privilege that should not stand. Therefore, this Court should hear this case on the merits and protect the privilege from untoward erosion.”
It said the court should uphold the Fifth DCA because “the decision supports the truth-seeking function of our judicial system. On the other hand, the holding in Burt [the conflicting decision from the Second DCA] that a plaintiff’s referral by her attorney to her doctor is a privileged communication, has been used to hide the existence of the lucrative financial relationships between treating physicians and lawyers.”
He also argued the relationship between law firms and doctors in such cases are important because jurors might tend to see the treating doctors as impartial when in fact they gain substantial economic benefits from their ties to the law firms who can supply both patients and lucrative payments.
In a subsequent deposition, Worley said she had not been referred by other doctors, the emergency room, friends, or relatives. The YMCA then filed interrogatories asking Morgan and Morgan how many times it had referred clients to Sea Spine, the amount of the bills, whether Sea Spine doctors had testified as experts in the firm’s cases, and other information.
In its follow-up filing, Worley said the defense had questioned representatives from Sea Spine who said they thought Worley had been referred by the emergency room and that Sea Spine’s corporate representative said the facility did not take lawyer referrals.
The Florida Justice Association said it was not concerned about financial discovery on any relationship between treating doctors and plaintiff attorneys, but agreed with Worley that the Fifth DCA decision should be reversed.
While the basic assessment of the privilege is simple (it protects confidential communications between attorneys and clients made for the purpose of giving legal advice), there is some confusion over how to treat communications that also serve a business purpose. For example, in-house counsel may be copied on internal communications that serve business purposes but also have legal implications.
As explained below, the 9th Circuit held that the "primary purpose" of the communication must be legal advice in order to stay protected. Additionally, we offer tips for staying compliant with the "primary purpose" test.
Advise business teams to avoid forwarding privileged communications to individuals beyond a "need to know basis." Consider adding "do not forward" notations on privileged emails and documents or use software that prohibits forwarding to prevent waiver of privilege.
The panel observed the common-law justification for the attorney-client privilege doctrine set forth in Upjohn Co. v. United States —is to encourage full and frank communication between attorneys and their clients. 3
Circuit's formulation of the primary purpose test, the 9th Circuit panel stated that it sees the merits of the reasoning in Kellogg, but it would only make a difference in "truly close cases." Therefore, the panel saw no reason to adopt or apply the panel's formulation in Kellogg but left open the possibility that it could, in the future, adopt such a test in certain close cases.
Alternatively, use language in replies or follow up communications that clarifies the purpose of the communication (e.g., "Thanks for raising these legal concerns with me"; "Thanks for this context, it helps me assess whether there are legal issues that we need to address.").
Understand if other applicable state privilege law is more restrictive. The "primary purpose" test may not always apply if the dispute is in state court, certain federal cases, 6 or outside the 2nd, 5th, 6th, 9th, and D.C. Circuits. Fortunately for California lawyers, California state courts use a test similar to the "primary purpose" test known as the "dominant purpose". 7 In Washington, we are unaware of more restrictive law, though the situation is less clear. 8
Supreme Court has long upheld the importance of attorney-client privilege, because the privilege “encourage [s] full and frank communication between attorneys and their clients.” Upjohn Co. v. United States, 449 U.S. 383 (1981). Both “the giving of professional advice to those who can act on it” and “the giving of information to the lawyer to enable him to give sound and informed advice” are protected. The privilege applies both to individual and to corporate clients. Nonetheless, claims of privilege in the modern corporate context have faced challenges because counsel have become widely involved in business operations, “render [ing] decisions about business, technical, scientific, public relations, and advertising issues, as well as purely legal issues.” In re Vioxx Prods. Liab. Litig ., 501 F. Supp. 2d 789 (E.D. La. 2007).
To lessen the risk of losing a privilege claim, organizations should adopt a set of best practices for communications with their general counsel.
Because they are often privy to and included in discussions of key business decisions and developments , they can ground their legal advice on a thorough understanding of the organization and its history. That intimate connection to the organization’s business life, however, operates as a double-edged sword. As some court decisions illustrate, the regular inclusion of general counsel in business communications can strip communications with corporate counsel of the presumption that they are protected by attorney-client privilege.
If navigating these guidelines leaves you with questions, your counsel can advise you on the parameters of attorney-client privilege. A discussion of that sort clearly entails legal advice and thus will itself be protected by attorney-client privilege.
Do not forward legal advice to non-attorneys who do not need the information, and do not forward legal advice to third parties. These actions will waive privilege by disclosing attorney-client communications to those outside the attorney-client relationship.
Do expressly state that you are seeking legal advice from your attorney if the email does not relate primarily to business issues. Including a statement such as “I’d like to get your legal advice on the following issue” in communications with your attorney will make it clear that the purpose of the communication is to obtain legal advice. The use of standard language or “code words” for such requests will streamline the identification of privileged documents during electronic discovery.
Do not use large contact groups for legal communications. While group emails may be convenient, they may also jeopardize privilege if they include non-lawyers who would not ordinarily be included in a legal consultation. Do not leave it unclear whether you are seeking legal advice.
Justice Griffis, writing for the majority, recognized Mississippi Rule of Evidence 502 (b) as setting forth the general rule of attorney-client privilege. The Court observed that just as a client may invoke attorney-client privilege, a client may also waive the privilege under certain circumstances, including, among others, where the client specifically asserts reliance on an attorney’s advice as a defense or otherwise places the attorney-client relationship directly at issue in the case. 1 Additionally, the Court acknowledged the requirement under Mississippi law for insurers to have an arguable or legitimate basis for denying an insured’s claim. 2
3 While Justice Ishee agreed with the majority that the attorney-client privilege applied to the contested communications, he did not agree that Travelers waived its privilege. Justice Ishee acknowledged the likelihood of the denial letter being the product of the claims handler’s conference with in-house counsel. However, he disagreed with the majority’s position that the claims handler lacked personal knowledge as to why the claim was denied simply because she could not answer questions concerning Mississippi statutory interpretation.
When a litigant seeks to establish its mental state by asserting that it acted after investigating the law and reaching a well-founded belief that the law permitted the action it took, then the extent of its investigation and the basis for its subjective evaluation are called into question. Thus, the advice received from counsel as part of its investigation and evaluation is not only relevant but, on an issue such as this, inextricably intertwined with the court’s truth-seeking functions. [3]
Claims of bad faith present unique challenges for insurers (and their counsel) with respect to attorney-client privilege: if the insurer’s state of mind is at issue, is the legal advice on which the insurer relied also at issue, thereby waiving the privilege? And if so, under what circumstances? The following addresses this issue in the context of a common practice for insurance counsel—authoring denial letters—and two recent holdings that should serve as warnings in this practice.
[2] By contrast, some courts have held that under certain circumstances, the insurer waives its attorney-client privilege by relying on legal advice—even without actually invoking the “advice of counsel” defense. The Supreme Court of Arizona summarized the underlying rationale as follows:
In cases involving claims of bad faith, courts are relatively clear that an insurer waives its attorney-client privilege when it expressly invokes the “advice of counsel” defense, which generally provides that “when an insurer’s actions are in conformity with advice given to it by counsel, the insurer’s actions are taken in good faith, and thus the essential element that an aggrieved insured must demonstrate in establishing insurer bad faith is nullified.” [1] However, courts are less united on whether a waiver occurs when the insurer receives advice from its attorney when making its coverage decision, but does not expressly assert the “advice of counsel” defense .
The adjuster was not an attorney, and therefore sought advice from the insurer’s in-house counsel, who then penned a letter (in the adjuster’s name) that reaffirmed why—under the policy and Mississippi statutes—coverage was not required. [12] . Ultimately, the insured asserted claims against the insurer for bad faith, ...
Piercing the attorney-client privilege may be one of opposing counsel’s top priorities irrespective of the strength of their case. The privilege protects confidential communications between the client and the lawyer made for the purpose of obtaining or providing legal assistance, to “encourage full and frank communication . . . and thereby promote broader public interests in the observance of law and administration of justice.” United States v. Zolin, 491 U.S. at 562, 109 S.Ct. 2619 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ). But the privilege may not apply, it may be waived, or there may be exceptions to it. Counsel’s position on issues concerning potentially privileged documents impacts his or her credibility with the court, so it is advisable to be fully familiar with the scope of the privilege from the first time the issue arises in a matter, and not when it is too late.
Officers, directors, and employees must rely on in-house counsel to understand the difference. The predominant purpose of the communications should seek legal services for the privilege to apply. Copying in-house counsel on communications does not make them privileged.
Clearly identify when seeking or providing legal advice. Only outside counsel should retain and communicate with consultants during litigation. Retention by in-house counsel is preferable to retention by corporate management. Explain privilege limits and waiver to the client at the beginning and throughout a matter.