Although there are minor variations, the elements necessary to establish the attorney–client privilege generally are: The asserted holder of the privilege is (or sought to become) a client; and The person to whom the communication was made:
In order for the attorney-client privilege to protect communications, there are a number of prerequisites: The attorney must be a member of the bar (or a subordinate) and be acting as a lawyer: Those who wish to use the privilege must make sure they are speaking to an attorney at Employers Council. Feel free to ask this question if you are not sure.
The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients' secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers provide effective representation.
641 A.2d 58, 61 (R.I. 1994)). To successfully invoke the attorney-client privilege, the following elements must be established: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is [a] member of a bar of a court, or his or her subordinate and (b) in connection with this
Although there are minor variations, the elements necessary to establish the attorney–client privilege generally are: The asserted holder of the privilege is (or sought to become) a client; and; The person to whom the communication was made: is a member of the bar of a court, or a subordinate of such a member, and
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the ...May 26, 2005
The communication must be for the purpose of securing an opinion on law or legal services or assistance in some legal proceeding: If there is no current claim or potential of an imminent legal claim, there is not any privilege, but once there is a current or potential claim, then privilege can be invoked.
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 ...
Communication made by the client to the attorney, or advice given by the latter to the former; 3. Communication or advice must have been made confidentially; 4. Such communication must have been made in the course of professional employment. Absent the existence of all these requisites, the privilege does not apply.
To invoke the attorney-client privilege, the proponent must establish a communication between attorney and client in which legal advice was sought or rendered, and which was intended to be and was in fact kept confidential.Oct 31, 2013
Legal privilege or attorney client privilege is essentially referring to the rights which are available to the client for the protection of their interest. It ensures full, frank and complete disclosure of information or communication between the client and lawyers without any fear of disclosure or incrimination.
Attorney-Client Privilege. A confidential communication between a client and an attorney for the purpose of seeking legal advice or representation is privileged.
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.
Which of the following may not be protected under the attorney-client privilege? A client who orally confesses to a crime. Correct!
The established privileged communications are those between wife and husband, clergy and communicant, psychotherapist and patient, physician and patient, and attorney and client. These relationships are protected for various reasons.
privileged communication, in law, communication between persons who have a special duty of fidelity and secrecy toward each other. Communications between attorney and client are privileged and do not have to be disclosed to the court.
A privilege is a legal rule that protects communications within certain relationships from compelled disclosure in a court proceeding. One such privilege, which is of long standing and applicable in all legal settings, is the attorney-client privilege.
In-house attorneys are typically members of a company’s executive or leadership team and as a result, provide both legal and non-legal advice.
Anthony Argiropoulos is a partner in Epstein Becker Green’s Litigation and Health Care & Life Sciences practices and co-chair of the firm’s National Litigation Steering Committee. He represents health care clients, publicly held companies, and other large businesses in high-stakes litigation and dispute avoidance and resolution.
The attorney-client privilege is the “oldest of the privileges for confidential communications known to the common law, ” dating back to the days of Eliza-bethan England. 14 Its purpose is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public inter-ests in the observance of law and administration of justice.”15 Thus, it affords complete protection from disclosure to confidential communications between attorney and client, but is subject to several exceptions.16 The “attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice.”17 But since the privilege hinders full discovery of the truth, it is oftentimes narrowly construed.18The following criteria, set forth in Professor Wigmore’s treatise on evi-dence,19 are typical of the requirements most jurisdictions have established to determine whether the attorney-client privilege applies: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclo-sure by himself or by the legal adviser, (8) except the protection be waived.20While the attorney-client privilege protects the disclosure of confidential information communicated between a client and an attorney for the purpose of obtaining or giving legal advice or assistance,21 the attorney-client privilege does not prevent the disclosure of facts, documents, or other matters not privi-leged.22 Thus, during discovery, a client must disclose the facts of which he is aware, whether or not the client disclosed them to the attorney, but neither the client nor the attorney can be questioned about whether those facts were disclosed and what advice was given.23 Similarly, documents supplied to an attorney are not protected from disclosure in discovery, but whether or not they were provided to the attorney is a privileged matter.24 Documents created by virtue of the attorney-client relationship may be protected from disclosure by the work-product doctrine.25The attorney-client privilege applies not only to communications made directly to attorneys, but also to communications made to the subordinates or employees of attorneys, such as investigators, paralegals, law clerks, secretar-ies, or other persons acting as agents of the attorney.26 Thus, statements made by the client to a private investigator employed by the client’s attorney are protected by the attorney-client privilege to the same extent as if made directly to the attorney.27
The attorney who conducts a factual investigation for the purpose of providing legal advice to a client should be able to communicate those facts to the client within the purview of the attorney-client privilege. This is clearly the majority rule, but it has not garnered a universal following. An attorney undertaking an investigation for a corporation may not be able to speak with employees at every level within the company under the cloak of the privilege, although the majority rule protects communications by corporate employees with knowl-edge no matter what position they hold in the company. The better-reasoned rule protects communications with third parties, at least where such facts were necessary to the rendering of the requested legal advice. Again, this rule is not universally followed. Even in those jurisdictions that may not recognize a privilege as to third-party facts, absent extraordinary circumstances, the work-product doctrine often shields the communications from discovery.
Goodfarb,157 the Arizona Supreme Court rejected both the control group test and the subject matter test in favor of the “func-tional approach.” In Samaritan, a child’s heart stopped during surgery and the hospital’s lawyer investigated the incident. The lawyer directed a nurse parale-gal to interview three nurses and a scrub technician who were present during the surgery. The paralegal summarized the interviews in a memorandum that she submitted to the hospital’s corporate counsel.158The child sued, and when the employees were unable to remember during their depositions what happened in the operating room, she sought production of the summaries prepared by the paralegal.159 The trial court rejected the hos-pital’s argument that the summaries were protected by the attorney-client privilege, but gave them limited protection under the work-product doctrine.160 The hospital appealed, and the appellate court upheld the trial court’s rul-ing, adopting a modified form of the control group test for application of the attorney-client privilege.161 The appellate court found that the requisite show-ing of need for the information had been made and upheld the trial court’s decision that the summaries were discoverable.162The Arizona Supreme Court rejected the court of appeals’ “qualified privilege” approach,163 opting instead for the “functional approach,” which focuses on the relationship between the communicator and the need for legal services.164 The court rejected both Upjohn’s subject matter test and the control group test for the same reason—both would protect communications made by employees of a corporation in their capacity as witnesses to an event in which they were uninvolved from a liability perspective.165 In the court’s view, any privilege that attaches to communications between corporate employees and the corporation’s attorneys must protect the legitimate needs of the corpora-tion to obtain legal advice, yet not be so broad as to encompass statements made by mere witnesses to an event.166 The court held that:
In some cases, an attorney may actually have two clients, even though only one client is or will be named as a party in litigation. An attorney represent-ing both the insurer and the insured in a subrogation suit and an attorney representing a liability insurer and the insured in a casualty defense matter are just two examples.238 The attorney-client privilege should apply whether or not the person asserting the privilege is named as a party. In United Coal Cos. v. Powell Construction Co.,239 for example, the court held that communications between United Coal’s property insurance carrier and an attorney it retained to file a subrogation action on its behalf but in the name of the insured, which also retained the attorney to recover its uninsured loss, were privileged.240Other courts, however, have taken a more restrictive view. In Sterling Drill-ing Co. v. Spector,241 the court found that an attorney hired by an insured’s insurer to defend the insured in subsequent litigation represented only the insurer. Sterling Drilling involved the death of a worker in an industrial acci-dent. The employer’s insurer hired an attorney to conduct an investigation into the insured’s punitive damages exposure and to provide legal advice regarding those damages.242 While the Sterling court implicitly found that the insurer shared an attorney-client privilege with the investigating attorney, the court refused to extend this protection to the employer because there was “no evidence that [the investigating attorney] had any real contact with [the employer] concerning the conduct of the investigation including the taking of the statements.”243
Another issue that arises in cases where attorneys conduct investigations is the scope of protection for information supplied by nonclients. Indeed, in some investigations, much of the information will be supplied by nonclients. The attorney transmits the information to his or her client, and it forms the basis of counsel’s legal advice and recommendations.
In sum, an attorney cannot ensure that the results of an investigation will be protected by the work-product doctrine. An attorney, however, can take steps to help establish that investigation materials were prepared in anticipation of litigation. For example, an attorney can, upon receiving a request to evaluate and investigate on behalf of a client, send a confirming letter to the client, not-ing that the attorney is investigating and evaluating the matter in anticipation of litigation and specifying the precise claims the attorney “anticipates.” An attorney can make sure not to perform a task that the client would perform as a regular part of its business if it had not hired the attorney, especially if the client is an insurance company. A lawyer can also make sure that any related claims are considered to protect the work product of all of those involved. A lawyer should determine the law applicable to statements from nonclients before deciding whether to take them and how to record them. Finally, while the work-product doctrine may shield documents from discovery, most courts hold that an opposing party can, by interrogatories or by deposition, discover factual information learned during an investigation. 395
Even if attorney-client communications from attorney to client reflecting fac-tual information or information received from nonclients are not protected by the attorney-client privilege, the work-product doctrine may preclude discov-ery in some cases. Work-product issues arise frequently in litigation involving insurance investigations. 296The work-product doctrine was first recognized by the U.S. Supreme Court in Hickman v. Taylor.297 In Hickman, the Court addressed the discoverability of statements taken by a lawyer representing a tugboat company. The statements had been taken from several witnesses to a tugboat accident that killed five crew members and were recorded in memoranda prepared by the attorney.298 The Court held that the attorney-client privilege was inapplicable, but it also held that the memoranda were not discoverable based on an immunity for materials prepared by attorneys in anticipation of litigation.299 The Court indi-cated that the statements might be discoverable upon a sufficient showing of need, but that it would be nearly impossible to discover information contain-ing the attorney’s mental impressions.300The Hickman decision was essentially codified in a 1970 amendment to Rule 26 of the Federal Rules of Civil Procedure. 301 Rule 26(b)(3) of the Federal Rules of Civil Procedure protects from disclosure documents and materials otherwise discoverable that were prepared in anticipation of litigation or for trial by or for another party or by or for the other party’s representative, includ-ing an attorney, consultant, insurer, or agent, except upon a showing that the party seeking discovery has substantial need for the materials in the prepara-tion of its case and is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means. 302 Rule 26(b)(3), however, provides virtually absolute protection to work-product materials that contain the men-tal impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.303 The reasoning behind the nearly unconditional protection of opinion work product was described by the Fourth Circuit, in Chaudhry v. Gallerizzo:304