discovery of communications between client and attorney when advice of counsel defense is used

The defendant-attorney is entitled to discovery concerning the client’s communications with successor counsel if they relate to advice successor counsel provided the client that affected the disposition of the underlying action.

Full Answer

Does the advice of counsel waive attorney-client privilege?

Although the defendants acknowledged that their advice of counsel defense required them to waive attorney-client privilege over the communications containing the relied upon advice, defendants asserted that this waiver was limited to advice they received before they undertook the course of conduct at issue.

When does attorney-client privilege apply to confidential communications?

See U.S. v. Mullen, 776 F.Supp. 620, 621 (D. Mass. 1991) ("the attorney-client privilege may apply to confidential communications made to an accountant when the client is under the mistaken, but reasonable, belief that the professional from whom legal advice is sought is in fact an attorney.");

Does the affirmative defense waive privilege over communications with counsel?

The court, however, held that by asserting the affirmative defense, defendants effectively waived privilege over all communications with any counsel, except trial counsel, relating to the three alleged schemes.

What are attorney-client communications in patent cases?

these communications are in essence communications between the client and the client's attorney. The British patent agent acted at the direction and control of the plaintiff. Further, through the agency of its patent agent, the plaintiff sought from the U. S. patent counsel legal advice and assistance concerning a U. S.

How to waive attorney-client privilege?

What is privileged communication?

Why is a broad waiver necessary?

About this website

What is the advice of counsel defense?

The “advice of counsel defense” is typically raised as an Affirmative Defense to refute the allegation that the insurer acted in “bad-faith” by showing that it retained expert legal counsel to specifically address the issues regarding the coverage of a property claim or settlement of a liability action.

What communications does the attorney-client privilege protect?

The privilege covers written and oral communications and protects both individual and institutional clients. The privilege extends from the attorney to include legal office staff that facilitates communications to and from the attorney.

Are conversations between attorneys privileged?

As a general matter, the privilege protects private conversations between attorneys and their clients. The attorney-client privilege is one of the oldest privileges in the law.

Are communications between co counsel privileged?

This is not a surprise when viewed through the lens of the attorney-client privilege: when two clients share an attorney, the communications between those clients and counsel are not privileged if a dispute subsequently arises between the clients.

Which of the following may not be protected under the attorney-client privilege?

Which of the following may not be protected under the attorney-client privilege? A client who orally confesses to a crime.

Are emails between opposing attorneys privileged?

Emailed correspondence between attorney and client is privileged. However, the client can take some actions which will waive this attorney client privilege.

Is legal advice confidential?

Legal advice privilege covers confidential communications between a client and its lawyers, whereby legal advice is given or sought. Privilege attaches to all material forming the lawyer-client communications, even if those documents do not expressly seek or convey legal advice.

What is the effect of having an outsider present when the lawyer and client are speaking to each other?

The general rule is that, by allowing a third party to be present for a lawyer-client conversation, the defendant waives the privilege. That generally means that the prosecution can force the third party to reveal the contents of the conversation.

What are the elements of the attorney-client privilege?

Although the precise definition of attorney–client privilege varies among state and federal courts, there are four basic elements to establish attorney–client privilege: (i) a communication; (ii) made between counsel and client; (iii) in confidence; (iv) for the purpose of seeking, obtaining or providing legal ...

Can I share confidential information with my lawyer?

Is information I share with my lawyer confidential? The short answer to that question is generally, yes. A lawyer's duty of confidence to their client arises from contract, equity and professional conduct rules.

What is the difference between a joint defense agreement and a common interest agreement?

As a starting point, many courts distinguish between the joint defense and common interest privilege, determining that the former is narrow and arises from actual litigation, while the common interest privilege is broader and does not require litigation to be pending.

How do you assert attorney-client privilege?

To fall within the attorney-client privilege, the communication must be:Made between a client and a lawyer,In confidence,During the course of the attorney-client relationship, and.The communication must be made with the attorney in his or her professional (legal) capacity.

Are conversations over the phone with my lawyer privileged?

As a general rule, any communication between a lawyer and a client is confidential and subject to the attorney client privilege. The attorney cannot tell that information to anyone without the client's consent. Importantly, this privilege applies to the lawyer's prospective clients, as well as actual clients.

What does it mean if a conversation is privileged?

Privileged communication is an interaction between two parties in which the law recognizes a private, protected relationship. Whatever is communicated between the two parties must remain confidential, and the law cannot force their disclosure.

What should you not say to a lawyer?

9 Taboo Sayings You Should Never Tell Your LawyerI forgot I had an appointment. ... I didn't bring the documents related to my case. ... I have already done some of the work for you. ... My case will be easy money for you. ... I have already spoken with 5 other lawyers. ... Other lawyers don't have my best interests at heart.More items...•

Can you confess to your lawyer?

On the one hand, anything you tell to your attorney is covered by the attorney-client privilege. However, if you are truly guilty, or have lied about the facts previously and change your story, your attorney will not want to put you on the stand so that you will incorrectly testify.

When Is Advice of Counsel a Defense You Can Raise, but Not Disclose?

When Is Advice of Counsel a Defense You Can Raise, but Not Disclose? Articles & Publications

The Advice of Counsel Defense - Just How Far Does that Attorney-Client ...

Following a recent federal court ruling, parties contemplating an advice of counsel defense must consider carefully the scope of the accompanying...

Understanding The Advice-Of-Counsel Defense - Mayer Brown

C. Provide Full Disclosure to Counsel and Keep Proper Documentation Full Disclosure of Facts Means Full Determination of Facts In order to provide outside counsel with the information needed to give advice, an executive or in-house

Court Rejects Advice of Counsel Waiver Argument | McGuireWoods

Privilege holders can waive their privilege protection without disclosing any privileged communications — for instance, by relying on an "advice of counsel" defense.

Advice of Counsel: Impact on Attorney-Client Privilege and Waiver

Recent political events have thrust one aspect of attorney-client privilege and waiver law into the headlines. President Trump’s December 13, 2018, tweet invoking “advice of counsel” as a defense against campaign finance allegations after his lawyer Michael Cohen’s recent sentencing has prompted a number of legal scholars and commentators to observe that the president’s tweet could ...

Why do parties in civil and criminal cases arguing that they lacked unlawful intent?

Frequently, parties in both civil and criminal cases where fraud or corporate misconduct is being alleged attempt to defend themselves by arguing that they lacked unlawful intent because they relied upon the advice of counsel.

Is counsel privilege waived?

As noted, it is unex ceptionable that, when a party relies upon an advice of counsel defense, attorney/client privilege necessarily is waived. After all, one of the determinative issues – what advice did the attorneys actually give – necessarily depends upon getting past the privilege, which is not absolute in any event.

Does the Lutz court extend the waiver to work product materials?

Thus, there is little exception to be taken with the court’s extension of the waiver to such materials.

What happens if you rely on an attorney in Florida?

People in Florida rely on lawyers to know and correctly interpret the law. Most would never believe that acting on the advice of their attorneys could potentially lead to legal troubles, yet what happens if it does? There is a valid legal defense that some claim in these situations known as “advice of counsel.” Essentially, this represents situations where one has disclosed all of the facts to an attorney regarding the legality of their actions, and were subsequently assured by said attorney that no laws were being broken. It would then seem reasonable to assume that with such an assurance, one would have never viewed their activities as being illegal.

Is advice of counsel legal?

There is a valid legal defense that some claim in these situations known as “advice of counsel.”. Essentially, this represents situations where one has disclosed all of the facts to an attorney regarding the legality of their actions, and were subsequently assured by said attorney that no laws were being broken.

Did the President believe his actions did not constitute violations?

Yet the President claims to have believed his actions did not constitute violations given he was following the advice of his attorney Michael Cohen (who has recently been convicted on charges related to the incident).

What is the scope of attorney-client privilege?

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.

Do federal agencies have a client?

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).

What is attorney-client privilege?

The attorney-client privilege, which originated in Roman and canon law, "is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). Its purpose is "to encourage full and frank communications between attorneys and their clients," and it exists to protect" not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Id. at 389-91.

What does "agent" mean in court?

Courts define the term "agent" broadly to encompass a range of individuals, from expert consultants to relatives to insurance agents, whose presence is necessary to the purpose of the meeting and to the rendering of advice. See, e.g:

What is the purpose of the British patent agent?

The British patent agent acted at the direction and control of the plaintiff. Further, through the agency of its patent agent, the plaintiff sought from the U.S. patent counsel legal advice and assistance concerning a U.S. patent application proceeding. Had the communications been made between the plaintiff and its U.S. counsel, the privilege would have attached.

When was the Grand Jury Subpoena Duces Tecum?

In re Grand Jury Subpoena Duces Tecum Dated Nov. 16, 1974, 406 F. Supp. 38l, 389 (S.D.N.Y. 1975) ("the attorney-client privilege covers communications to a prospective or actual co-defendant's attorney when those communications are engendered solely in the interests of a joint defense effort." ).

Can attorney-client privilege be vitiated?

The attorney-client privilege cannot be vitiated by a claim that the information sought is unavailable from any other source. Id. at 1495. "Such an exception would either destroy the privilege or render it so tenuous and uncertain that it would be little better than no privilege at all.". Id.

Is it necessary to have commenced litigation at the time of the meeting for the privilege to be applicable?

It is not necessary for actual litigation to have commenced at the time of the meeting for the privilege to be applicable. U.S. v. Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989), cert. denied, 502 U.S. 810 (1991).

Can a client be present at a meeting between his agent and his lawyer?

Nor must the client be present at a meeting between his agents and his lawyer for the communications during the meeting to be protected by the attorney-client privilege. Thus, for example, in Foseco, 546 F.Supp. 22, the court held that a meeting between the plaintiff's patent agent and the plaintiff's lawyer fell within the scope of the attorney-client privilege, even though the Plaintiff was not present at the meeting.

When discussing legal matters, should meeting minutes indicate clearly that?

In board meetings, conference calls and other meetings: When discussing legal matters, Board meeting minutes should indicate clearly that: In-house counsel attended in his/her role as legal advisor. Discussions were for the purpose of providing legal advice. Discussions were confidential and intended to be privileged.

How is attorney client privilege waived?

Attorney-client privilege is waived by disclosing the substance of the communication to a third party. Waiver can be voluntary or involuntary (accidental).

What is privileged attorney?

What is privileged? The attorney-client privilege protects: A communication. Between privileged persons (attorney, client, or in some cases, an agent) Made in confidence.

What is audit committee?

When an investigation is conducted by an audit committee or special committee, the committee is a client separate and apart from the company for the purposes of the attorney-client privilege. Any investigative report shared with the company board or others at the company is potentially discoverable.

What are some examples of legal functions?

Examples of legal functions: Advising company on existing law. Analyzing conduct for conformity with law or judgments regarding law. Advising on imminent litigation.

Is communication between counsel and a public relations firm privileged?

Ordinarily, communication between counsel and a public relations/crisis management firm is not considered privileged unless the party asserting the privilege can show that the communication was necessary for the client to obtain informed legal advice.

Who can exclude from privileged discussions?

Consider excluding from privileged discussions any observer or third party whose presence may prevent a claim to privilege (investment bankers, auditors, consultants).

Description

The Supreme Court's decision in Halo Electronics Inc. v. Pulse Electronics Inc., 136 S. Ct. 1923 (2016) significantly changed the standard for establishing a claim of willful patent infringement. Opinions of counsel are a more important factor that courts examine when exercising their discretion and award enhanced damages.

Outline

Privilege in the context of opinions of counsel and the use of the advice of counsel defense

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include course handouts.

How to waive attorney-client privilege?

A party may waive privilege by asserting an advice of counsel defense, which may place otherwise privileged information at issue. Because analyzing an advice of counsel defense requires an evaluation of the client’s reasonable reliance on that advice, such a waiver may extend not only to the advice relied upon, but also to the information provided to counsel in order to receive the advice and any related advice the defendant received from other counsel. In this case, the court explained that such a broad waiver was necessary to prohibit parties from using an advice of counsel defense as both a sword and shield, which could arise if a party was permitted to reveal certain communications with counsel while withholding others.

What is privileged communication?

1. To qualify as privileged, a communication must be for the purpose of obtaining or rendering legal advice. The privilege extends to the advice given by the attorney, the information provided by the client for the purpose of receiving the advice, and any further discussion between the attorney and the client of the advice.

Why is a broad waiver necessary?

In this case, the court explained that such a broad waiver was necessary to prohibit parties from using an advice of counsel defense as both a sword and shield, which could arise if a party was permitted to reveal certain communications with counsel while withholding others .

Attorney-Client Privilege

• The attorney-client privilege, which originated in Roman and canon law, "is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). Its purpose is "to encourage full and frank communications between attorneys and their clients," and it exists to protect" not only the givin...

See more on upcounsel.com

Basic Rules Regarding Attorney-Client Privilege

Privilege Offers Absolute Protection

Common Interest Privilege

Work Product Doctrine