what attorney client privilege law in federal court

by Sylvia Flatley Published 3 years ago Updated 2 years ago 5 min read

The attorney–client privilege protects all documents that can be considered a communication, including emails, text messages, let- ters and memoranda. The privilege protects communications that are created by the client as well as those addressed to the client.

Full Answer

What is the purpose of attorney client privilege?

What’s Covered Under Attorney Client Privilege?

All types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege. ...
The communication must be confidential . ...
The communication must be made by a client . ...
The client’s communications must be made to counsel – a lawyer . ...
Communications must be made for the purpose of seeking or providing legal advice . ...

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What is lawyer client privilege?

This special confidentiality right is called lawyer-client privilege. Lawyer-client privilege means that nobody can force a client to disclose the contents of any communications between the client and that client’s lawyer. This privilege is subject to very limited exceptions.

What is the attorney client privilege rule?

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 in connection with this communication, ...
The communication was for the purpose of securing legal advice.

Does attorney client privilege apply prospective clients?

Prospective Clients. Under the Model Rules of Professional Conduct, the attorney-client privilege exists for a potential client. Under Togstad v. Vesely, 291 N.W.2d 686 (1980), a non-client can claim to be a prospective client if: 1) the non-client seeks legal advice, 2) then the non-client reasonably relies on that advice as legal advice, and 3) the attorney does not attempt to dissuade the non-client from relying on the advice.

What is a rule 502 D order?

Simply put, Rule 502(d) permits a federal court to enter an order stating that production of documents protected by the attorney-client privilege or work product doctrine does not waive those protections in the specific litigation or any other federal or state proceeding.

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.

What is Rule 501 of the Federal Rules of Evidence?

Rule 501 deals with the privilege of a witness not to testify. Both the House and Senate bills provide that federal privilege law applies in criminal cases.

What is meant by the attorney-client privilege and what is the exception to this privilege?

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.

Is privileged information admissible in court?

An attorney who fails to uphold the duty of confidentiality may be sued for damages. However, confidential information can be used against a client in legal proceedings, whereas privileged information – which by nature is also confidential – cannot, unless so ordered by a court of law.

What happens if a lawyer break attorney-client privilege?

Speaking to a lawyer in a public place with other people is another example where the information may get out without consequences to the attorney. Otherwise, a lawyer who breaches the attorney-client privilege could face serious consequences for an ethical violation, such as disbarment and criminal charges.

Does Erie doctrine apply to federal question?

Description. Courts and commentators have assumed that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction.

What are the common law privileges?

Common law privileges are a different matter. These privileges are judicial creations, not based in constitutional provisions. They are designed to protect confidential communications between parties in certain relationships, such as the attorney-client, doctor-patient, and spousal privileges.

Is privilege law substantive or procedural?

U.S. courts generally view privilege issues to be questions of substantive law, and will engage in a choice-of-law analysis when presented with several potentially applicable privilege laws. By contrast, work product is viewed as a procedural matter, and the work product law of the forum will apply.

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.

Can an attorney refuse to represent a client?

CANON 14 - A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE NEEDY. Rule 14.01 - A lawyer shall not decline to represent a person solely on account of the latter's race, sex. creed or status of life, or because of his own opinion regarding the guilt of said person.

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

The main difference between attorney-client privilege and attorney-client confidentiality is that the former is an evidentiary principle while the latter is an ethical principle.

What are the two cases that changed the face of privilege law?

Two of those forks changed the face of privilege law in the federal courts. In 1981, the U.S. Supreme Court decided Upjohn Co. v. United States , 449 U.S. 383. And in 2008, Congress adopted Rule 502 of the Federal Rules of Evidence. If the privilege could speak, it would say that those decisions by the Supreme Court and by Congress were watershed moments. But in the same breath, it would add that organizational depositions, selective waiver, common interest legal groups, and ethics rules present issues of privilege protection or privilege waiver that are challenging to follow even with a road map.

Which court case left open the question of whether its rule should apply to former employees?

In contrast, the Fourth Circuit in In re Allen, 106 F.3d 582 (4th Cir. 1997), noted that the Upjohncourt left open the question of whether its rule should apply to former employees, but the Fourth Circuit adopted Chief Justice Burger’s analysis in his concurring opinion in Upjohn: “[I]n my view the Court should make clear now that, as a general rule, a communication is privileged at least when, as here, an employee or former employee speaks at the direction of the management with an attorney regarding conduct or proposed conduct within the scope of employment.”

What is Rule 502(a)?

Under Rule 502(a), an inadvertent production of a privileged document in a federal court or to a federal agency can no longer trigger subject matter waiver claims in any federal or stateproceeding.

Why was the Illinois Supreme Court ruling not applicable?

The Illinois Supreme Court held that the privilege was not applicable because of (1) the cooperation clause in the insurance policy and (2) insurers and insureds have a common interest in defeating or settling the claim against the insured.

What do lawyers use in litigation?

In litigation today, lawyers often use public relations strategies and strategists, including when the risk of an indictment might be affected by public sentiment. But lawyers hoping to protect their conversations with public relations consultants should know they are treading on thin ice.

Why did the court not require the production of counsel's notes and memoranda?

Nonetheless, the court held that “fairness” did not require production of counsel’s interview notes and memoranda because GM was not attempting to use the investigative report as a “sword” that would require the production of the notes and memoranda that GM was trying to shield. Rule 502(b) solved a different problem.

Which court held that memoranda of counsel interviews with employees were not waived?

The Eighth Circuit adopted the doctrine in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1978) (en banc). The court held that memoranda of counsel’s interviews with employees provided to the Securities and Exchange Commission in response to a subpoena in a nonpublic investigation did not waive the privilege as to other parties. “To hold otherwise may have the effect of thwarting the developing procedure of corporations to employ independent outside counsel to investigate and advise them in order to protect stockholders, potential stockholders and customers.”

Why is the attorney-client privilege important?

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).

How to lessen the risk of losing a privilege claim?

To lessen the risk of losing a privilege claim, organizations should adopt a set of best practices for communications with their general counsel.

Why do organizations hire 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.

Can counsel advise on 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.

Can you forward legal advice to a non-attorney?

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 you need to state that you are seeking legal advice from your attorney?

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.

Can you use a large contact group for legal communication?

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.

Which provision requires that state privilege law apply?

In civil actions and proceedings, where the rule of decision as to a claim or defense or as to an element of a claim or defense is supplied by state law, the House provision requires that state privilege law apply. The Conference adopts the House provision.

What are nonconstitutional privileges?

Nine of those rules defined specific nonconstitutional privileges which the Federal courts must recognize (i.e., required reports, lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, secrets of state and other official information, and identity of informer).

When should the rules of privilege apply?

The formulation adopted by the House is pregnant with litigious mischief. The committee has, therefore, adopted what we believe will be a clearer and more practical guideline for determining when courts should respect State rules of privilege. Basically, it provides that in criminal and Federal question civil cases, federally evolved rules on privilege should apply since it is Federal policy which is being enforced. [It is also intended that the Federal law of privileges should be applied with respect to pendant State law claims when they arise in a Federal question case.] Conversely, in diversity cases where the litigation in question turns on a substantive question of State law, and is brought in the Federal courts because the parties reside in different States, the committee believes it is clear that State rules of privilege should apply unless the proof is directed at a claim or defense for which Federal law supplies the rule of decision (a situation which would not commonly arise.) [While such a situation might require use of two bodies of privilege law, federal and state, in the same case, nevertheless the occasions on which this would be required are considerably reduced as compared with the House version, and confined to situations where the Federal and State interests are such as to justify application of neither privilege law to the case as a whole. If the rule proposed here results in two conflicting bodies of privilege law applying to the same piece of evidence in the same case, it is contemplated that the rule favoring reception of the evidence should be applied. This policy is based on the present rule 43 (a) of the Federal Rules of Civil Procedure which provides:

What is Rule 501?

Rule 501. Privilege in General. The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise: rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies ...

What are the rules of Article V?

required reports, lawyer-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote , trade secrets, secrets of state and other official information, and identity of informer ). Another Rule provided that only those privileges set forth in Article V or in some other Act of Congress could be recognized by the federal courts. The three remaining Rules addressed collateral problems as to waiver of privilege by voluntary disclosure, privileged matter disclosed under compulsion or without opportunity to claim privilege, comment upon or inference from a claim of privilege, and jury instruction with regard thereto.

What is the Committee's view on civil cases?

The Committee believes that in civil cases in the federal courts where an element of a claim or defense is not grounded upon a federal question, there is no federal interest strong enough to justify departure from State policy.

Is the prohibition against spouses testifying against each other a rule of privilege?

Further, we would understand that the prohibition against spouses testifying against each other is considered a rule of privilege and covered by this rule and not by rule 601 of the competency of witnesses.

Who appointed the guardian for Nancy K.?

Upon review of the petition, which alleged serious allegations of elder abuse, Judge Knobel appointed a temporary guardian and counsel for the AIP. A cross-petition was then filed seeking dismissal of the petition and permitting the cross-petitioner to be appointed guardian for the AIP.

Is a document privileged by law?

Attorney-client privilege jurisprudence is well-settled that a “document is not privileged merely because it was sent or received between an attorney and client … [it] must contain confidential communication relating to legal advice.” Dept. of Econ. Dev. v. Arthur Anderson & Co. (USA), 139 FRD 295, 300 (SDNY 1991). This rule was at issue in United States v. Correira, 468 F. Supp. 3d 618 (SD NY 2020), raised in a novel argument.

Overview

In the federal courts

If a case arises in the federal court system, the federal court will apply Rule 501 of the Federal Rules of Evidence to determine whether to apply the privilege law of the relevant state or federal common law. If the case is brought to the federal court under diversity jurisdiction, the law of the relevant state will be used to apply the privilege. If the case involves a federal question, the federal court will apply the federal common law of attorney–client privilege; however, Rule 501 grants fl…

General requirements under United States law

Although there are minor variations, the elements necessary to establish the attorney–client privilege generally are:
1. The asserted holder of the privilege is (or sought to become) a client; and
2. The person to whom the communication was made:

When the privilege may not apply

When an attorney is not acting primarily as an attorney but, for instance, as a business advisor, member of the Board of Directors, or in another non-legal role, then the privilege generally does not apply.
The privilege protects the confidential communication, and not the underlying information. For instance, if a client has previously disclosed confidential information to a third party who is not a…

Tax practice

In the United States, communications between accountants and their clients are usually not privileged. A person who is worried about accusations of questionable accounting, such as tax evasion, may decide to work only with an attorney or only with an accountant who is also an attorney; some or all of the resulting communications may be privileged provided that all the requirements for the attorney–client privilege are met. The mere fact that the practitioner is an a…

Notes

1. ^ "Attorney–client privilege", Black's Law Dictionary, p. 1391 col. 2 (Bryan A. Garner 10th ed. 2014).
2. ^ Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998).
3. ^ Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

External links

• Federal Rule of Evidence 502 Resource Page Provides background and key links on the 2008 amendment "to address the waiver of the attorney–client privilege and the work product doctrine."
• Office of the General Counsel: The Attorney–Client Privilege from Stanford University