north carolina what constitutes attorney client privilege

North Carolina courts recognize a five-part test for determining whether the privilege applies to a given communication. 1 In order to be privileged, a communication must meet the following criteria: An attorney-client relationship must exist at the time the communication was made.

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What is Chapter 3 of the attorney-client privilege?

Attorney-Client Privilege: Elements 1. The relationship of attorney and client existed when the communication was made; 2. The communication was made in confidence; 3. The communication concerns a matter about which the attorney is being professionally consulted; 4. The communication was made in the course of giving or seeking legal

What is the attorney-client privilege and work-product doctrine?

Aug 14, 2017 · North Carolina law has allowed an exception to the attorney-client privilege. Known as the “crime fraud exception,” it protects attorneys whose clients seek the advice of counsel for an improper or illegal purpose. Such communications will not be protected. The client has not waived the privilege. It is critical to realize that you can destroy privilege by telling someone …

What is the principle of client-lawyer confidentiality?

Attorney-Client Privilege-Diersfled Industries, Inc. v. Meredith: New Rules for Applying the Privilege When the Client Is a Corporation The attorney-client privilege protects from disclosure confidential communications between an attorney and his client.' The privilege ap-plies in both individual and corporate client contexts; when the client is

What does client mean in law?

If a lawyer is called as a witness to give testimony concerning a client or is otherwise ordered to reveal information relating to the client's representation, however, the lawyer must, absent informed consent of the client to do otherwise, assert on behalf of the client all nonfrivolous claims that the information sought is protected against disclosure by the attorney-client …

What is subject to attorney-client privilege?

Preliminary communications between a potential client and a lawyer are normally subject to the attorney-client privilege. That means that lawyers can't disclose what prospective clients reveal in confidence even if the lawyers never ends up representing them.

What is considered client privilege?

Definition. Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret. The privilege is asserted in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath.

What factors are necessary for a statement to be covered by the attorney-client privilege?

No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.

Who is covered by the attorney-client privilege when a corporation is the client?

Initially, the attorney-client privilege applies to communications made between privileged persons (attorneys, clients, and agents of either) in confidence for the purpose of obtaining or providing legal assistance for the client. Restatement, § 118.

What is the difference between attorney-client privilege and confidentiality?

Attorney-client privilege protects lawyers from being compelled to disclose your information to others. ... Confidentiality rules provide that attorneys are prohibited from disclosing any information for privacy reasons, unless it is generally known to others.Jan 6, 2017

Who can assert attorney-client privilege?

2d 330, 334 (1993). The privilege is held by the client, who has the sole authority to waive the privilege. Nonetheless, the attorney is required to assert or invoke the privilege when necessary on behalf of the client, even without an express instruction by the client. There are few exceptions to the privilege.

Are emails between lawyers privileged?

Emailed correspondence between attorney and client is privileged. However, the client can take some actions which will waive this attorney client privilege.Apr 28, 2021

Are communications between plaintiffs privileged?

Normally, whenever a party claims that a communication is protected by the attorney-client privilege, the communication is presumed to be so privileged, and the opponent of the claim of privilege has the burden of proof to establish that the communication was in fact not confidential.

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. Correct!

Are employees covered by attorney-client privilege?

The first, and most important thing, to recognize is that attorney-client privilege between corporate attorneys and employees is limited and must relate to legal advice and the employee's actual duties at the company. Any employee who speaks with an attorney should be aware of these limitations.

Are communications between clients privileged?

Evidence Code 954 is the California statute that makes communications between attorneys and their clients privileged and confidential. Therefore, the lawyer-client relationship is one of the most robust privileges in California evidence law. ...

What is covered by legal privilege?

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 attorney-client privilege?

Where a defendant alleges ineffective assistance of prior trial or appellate counsel as a ground for the illegality of his conviction or sentence, he shall be deemed to waive the attorney-client privilege with respect to both oral and written communications between such counsel and the defendant to the extent the defendant's prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness. This waiver of the attorney-client privilege shall be automatic upon the filing of the motion for appropriate relief alleging ineffective assistance of prior counsel, and the superior court need not enter an order waiving the privilege.

When client sues his attorney or otherwise alleges that the attorney provided incompetent representation, the client may

When client sues his attorney or otherwise alleges that the attorney provided incompetent representation, the client may not assert the privilege concerning the matter in issue. N.C. REV. R. PROF.

When is a communication not confidential?

A communication is not confidential when made in the presence of another person whose presence is not essential to the communication. State v. Van Landingham, 283 N.C. 589, 602 (1973) (wife); State v. Murvin, 304 N.C. 523, 531 (1981) (aunt and friend).

How did Eric Miller die?

Dr. Eric Miller died from arsenic poisoning ;Shortly before his death, Miller was bowling with co-workers of his wife, Ann Miller;Bowling party included Mr. Willard, who was romantically involved with Mrs. Miller;While bowling, Miller took a drink of beer that he described as “tasting funny”Miller later hospitalized and died:Upon Miller’s death, Mrs. Miller directed that the body be cremated;Mr. Willard hired an attorney, met with him, then committed suicide before being interviewed by police;According to Mrs. Willard, attorney advised Mr. Willard that he could be charged with the attempted murder of Dr. Miller;District Attorney sought an order from the Superior Court compelling Willard’s attorney to disclose his conversation with Willard.

What is the opinion rule for a lawyer?

Opinion rules that a lawyer may disclose information concerning advice given to a client at a closing in regard to the significance of the client's lien affidavit. RPC 117. Opinion rules that a lawyer may not reveal confidential information concerning his client's contagious disease. RPC 120.

What is client lawyer confidentiality?

The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information acquired during the representation, whatever its source.

How long does a bankruptcy lawyer have to report new property?

Opinion rules that, subject to a statute prohibiting the withholding of the information, a lawyer's duty to disclose confidential client information to a bankruptcy court ends when the case is closed although the debtor's duty to report new property continues for 180 days after the date of filing the petition.

Can an attorney disclose perjury?

An attorney may not disclose the perjury of his partner's client. CPR 374. Information concerning apparent tax fraud obtained by an attorney employed by a fire insurer to depose insureds concerning claims is confidential and may not be disclosed without the insurer's consent. RPC 12.

Can a lawyer disclose to a client?

Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. Disclosure Adverse to Client.

Can a lawyer disclose information?

A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope. [4] Paragraph (a) prohibits a lawyer from revealing information acquired during the representation of a client.

Can a lawyer disclose information acquired during a professional relationship with a client?

(a) A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

What is the rule for lawyers?

Lawyers are usually bound by the organization’s constituents’ decisions, even when they appear unreasonable or counterproductive. Rule 1.13 cmt. [3]. When the lawyer is acting as a legal advisor, policy and operations decisions, even when they involve serious peril to the organization, are outside the lawyer’s province. Id.

What is the duty of confidentiality of an attorney?

For purposes of the lawyer’s duty of confidentiality, this means that when one of the constituents of an organizational client communicates with the organization’s lawyer in that person’s organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews

What is the meaning of Rule 1.6(b)?

Rule 1.6(b) “permits but does not require the disclosure of information acquired during a client’s representation .” Id. cmt. [16]. Before making a discretionary disclosure under this rule, the lawyer should first try to persuade the client to take proper action to eliminate the circumstances making the disclosure necessary. Id. Significantly, “a lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule.” Id. (emphasis added).

What is the purpose of Rule 26(b)(3)?

The protection has been extended to studies ordered by a lawyer in preparation for trial, litigation consultants’ documents, materials prepared by an accountant under the lawyer’s direction, and an opinion letter written by an expert as part of the lawyer’s preparation for the impending lawsuit. Id. § 26.70[4] & nn.57–58.

What is work product in law?

Lawyers have long thrown “work product” around loosely, seeking to protect oral communications with witnesses and experts. It applies, however, only to “documents and tangible things,” not to what the attorney has said to persons other than his or her client. 6 Moore’s Fed. Practice § 26.70[2][a]. Facts contained in the documents are freely discoverable, although a chart or compilation of facts are immune from discovery. Id.; Fed. R. Civ. P. 26(b)(3).

What is the common law work product doctrine?

Fed. R. Civ. P. 26(b)(3) codi fies the common law work product doctrine. It protects from discovery documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).

What case held that communications between a murder suspect and a young lawyer who had passed the bar examination but not yet

In State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973) , the Court held that communications between a murder suspect and a young lawyer who had passed the bar examination but not yet taken his oath as an attorney were not privileged.

What is the privilege of Tack in GTA?

GTA essentially argued that Tack, its sole shareholder, was its alter ego and, therefore, the privilege protects communications between GTA’s counsel and the agent of its alter ego. The question, then, was “whether communications with someone who is an agent of the sole shareholder, but not of the corporation, fall under ...

What is the Kovel doctrine in GTA?

This doctrine, explored in detail in Deck the Halls with Boughs of Kovel, generally holds that a third party may participate in lawyer–client communications without waiver if the third party is necessary to facilitate the rendering of legal advice. North Carolina has not decided whether to adopt this privilege-extending doctrine.

What is the GTA functional equivalent?

So, GTA pivoted to the functional-equivalent doctrine. This doctrine generally applies the attorney–client privilege to communications between a company’s lawyer and a third-party agent whose duties render him the functional equivalent of a company employee. You may read more about that doctrine here.

Why did the Supreme Court reject the alter ego privilege theory?

The Supreme Court rejected this alter-ego privilege theory because that concept ignores North Carolina corporate law. This law recognizes that a corporate entity is completely distinct from its shareholders. And this is true even if the shareholder/owner is a single individual. The Court correctly observed that this rule “ensures ...

Is Haspeslagh a privilege or a privilege?

The Court correctly observed that this rule “ensures that a shareholder who forms a corporation ‘to secure its advantages’ cannot ‘disregard the existence of the corporate entity’ to avoid its disadvantages.”. So, in sum, Haspeslagh was the sole shareholder’s agent and not the entity’s agent, and the alter ego theory is not a privilege theory.

Does North Carolina have a privilege extending doctrine?

North Carolina has not decided whether to adopt this privilege-extending doctrine. And it would not do so for GTA. The Court noted that GTA did not argue that Haspeslagh’s service as a substitute for Tack was necessary to facilitate communications between GTA and its counsel.

Was Haspeslagh Tack's agent?

GTA refused, and its CEO and Tack testified that Haspeslagh was Tack’s agent, not GTA’s agent. But GTA later identified Haspeslagh’s communications with GTA counsel on its privilege log. The defendants raised eyebrows, and one of them moved to compel. GTA admitted, as it had to do, that Haspeslagh was not its agent, ...