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 tell third parties: “My attorney tells me that . . . .” This will waive privilege by disclosing the content of your communications with your attorney. Instead, you can convey your position to the other party without framing it as sharing legal advice you received.
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).
The attorney-client privilege is a bedrock legal principle of our free society that is important in both the civil and criminal contexts. The privilege enables both individual and organizational clients to communicate with their lawyers in confidence, which is essential to preserving all clients’ fundamental rights to effective counsel.
For example, two agencies within the Department of Homeland Security (DHS)—U.S. Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) —issued directives in 2009 claiming the authority to search lawyers’ (and all other travelers') laptop computers, cell phones, and other electronic devices at the border without any showing of reasonable suspicion or probable cause. Other federal agencies like the National Security Agency (NSA) have adopted “minimization” policies and practices that, while beneficial, may not adequately protect the privileged status of intercepted information.
Several years ago, Congress considered, but declined to enact, comprehensive legislation known as the “Attorney-Client Privilege Protection Act” (ACPPA) (H.R. 3013 and S. 3217, 110 th Congress; and H.R. 4326 and S.445, 111 th Congress) that would have prohibited all federal agencies (except bank regulators) from pressuring companies and other organizations to waive their attorney-client privilege, work product, or employee legal protections during investigations. In November 2007, the House overwhelmingly approved H.R. 3013 , but the Senate companion bill, S. 3217, and similar bills in the 111 th Congress, H.R. 4326 and S.445, all failed to receive a vote. While the ABA views the current revised Justice Department policy and the other revised federal agency policies described above to be substantial improvements over the agencies’ previous waiver policies, the ABA continues to support comprehensive legislation like the ACPPA—or a similar Presidential executive order applying these reforms to all federal agencies—as the best means to permanently protect the privilege and the work product doctrine from government-coerced waiver.
In May 2017, the ABA sent a letter to DHS, CBP, and ICE officials that expressed concerns over the increasingly common practice of U.S. border agents conducting warrantless searches of lawyer electronic devices during border crossings. In response to the ABA’s letter and similar concerns raised during a meeting between the ABA and DHS officials in June 2017, CBP issued a revised Directive on Border Search of Electronic Devices on January 4, 2018 that includes several key ABA-requested reforms. While not all ABA recommendations were adopted—and more needs to be done—the new CBP border search directive significantly increases the protections for privileged and confidential client information contained on lawyer laptop computers, cell phones, and other electronic devices and is a clear improvement over the prior search policy. A brief summary of these useful changes in the new CBP policy is contained in the ABA Border Search Fact Sheet.
After considering the concerns raised by the ABA and its coalition allies, congressional leaders, former Justice Department officials, and others, the Sentencing Commission and the CFTC voted to reverse their privilege waiver policies in April 2006 and March 2007, respectively. In addition, the Justice Department replaced the Holder, Thompson, and McNulty Memoranda with the so-called "Filip Memorandum" and revised corporate charging guidelines in August 2008, which stated that while prosecutors may require companies to disclose all relevant facts during investigations in return for cooperation credit, they can no longer require or even ask companies to waive their attorney-client privilege or work product protections or to forego paying their employees’ legal fees. The Department's policy regarding disclosure of relevant facts and privilege waiver was reaffirmed and further clarified in the so-called "Yates Memorandum " in September 2015 and in the corresponding changes and updates to the Department's corporate charging guidelines for business organizations adopted in November 2015 and November 2017.
Federal agency policies that compel parties to disclose privileged or work product protected information violate longstanding common law principles and undermine both the confidential lawyer-client relationship and the fundamental right to counsel. The U.S. Supreme Court has long held that the privilege and work product apply to both individuals ...
The privilege also encourages clients to seek out and obtain guidance to conform their conduct to the law, facilitates self-investigation into past conduct to identify shortcomings and remedy problems, and enables lawyers to fulfill their ethical duties to their clients, all of which benefit society at large.
Initially, Appellate Division decision consistently hold that a right of disclosure to an adverse party extends to writings used by a witness prior to testifying at a trial or deposition. The Fourth Department’s decision in Doxator v. Swarthout, 38 A.D.2d 782 (4th Dep’t 1972) is the seminal decision. In this medical malpractice action, the defendant physician testified at her deposition that “she had reviewed some notes made after the [underlying] incident and that they were used by her to refresh her recollection with respect to the details of her testimony. Id. at 782. The court phrased the issue before it as whether “the rule regarding inspection applied at an examination before trial should be no more stringent than the rule applicable to trial testimony.” Id. The court then held there are “persuasive reasons to permit [the] inspection,” namely, the risk to the adversary of false, forged or manufactured evidence is “precisely the same whether the witness refreshes his recollection by consulting a writing before trial or by consulting it while on the witness stand during trial.” Id.
Unfortunately, the courts rarely set forth the precise manner in which it makes their decisions as to whether “justice requires” the production of the writing. An exception is Johnson. The court set forth the following for consideration: “ (1) The status of the witness; (2) The nature of the issue in dispute; (3) When the events took place; (4) When the documents were reviewed; (5) The number of documents reviewed; (6) Whether the witness prepared the document (s) reviewed; (7) Whether the documents reviewed contain, in whole or part, pure attorney work product, such as discussion of case strategy, theories or mental impressions, which would require redaction or favor nondisclosure; and (8) Whether the documents reviewed previously have been disclosed to the party taking the deposition, as part of a FRCP 34 document production, or otherwise.” Johnson, at *16. Upon a careful analysis of these considerations under the circumstances of the use of the documents, the court ordered disclosure.
Thus, merely looking at a document prior to testifying will not trigger disclosure. As further indicated in Johnson, where there has been a significant passage of time since the event examined on occurred and the time the witness reviewed the document, the use of the document for refreshing recollection purposes will generally be established, notwithstanding the witness’s contrary statement.
Magistrate Judge Deborah Boardman initially held, citing to FRE 612 (a) (2), that disclosure of documents used to refresh a witness’s recollection before a deposit is not automatic because disclosure is permitted only under certain circumstances. Id. at *4. The court then held that “when plaintiff’s counsel showed Carroll documents in advance of his deposit, plaintiff waived any opinion work product production he might have had over the compilation of the documents. Id. at *11-12. The basis for this waiver determination was that “work product protection should not shield defense counsel from discovery of any influence plaintiff’s counsel may have had on that witness when counsel and the witness met before the deposition.” Id. at *12. Lastly, the court, citing to FRE 612 (a) (2), (b), which provides that disclosure may be permitted if “justice requires” directed disclosure because it was in the interest of justice for the defendants to see the documents because “plaintiff’s counsel shared the documents with Carroll to refresh his recollection.” Id. at *16.
Notably, the Appellate Division decisions do not address whether the right of disclosure is nonetheless subject to the court’s discretion as FRE 612 provides . Rather, the decisions treat this right as absolute and automatically granted, presumably because of the “persuasive reasons” set forth in Doxator. However, it is certainly a debatable rule in view of the fact that it can lead to unwarranted “fishing expeditions” and delays of trials and depositions when the issue is raised at the trial or deposition and the writings were not readily available. See Hutter, Review of Privileged Documents in Trial and Deposition Practice in New York, 38 Pace L. Rev. 437, 491-93 (2018).
With respect to the issue of whether the use of a document protected by the attorney-client privilege or work product doctrine waives the protection accorded to the document, the federal courts have uniformly held that the privileged protections against disclosure are lost when the document is used by refresh a witness’s recollection while testifying, even the loss of the opinion work product protection. See Mueller and Kirkpatrick, Federal Evidence (4th ed.), p. 601. However, when a document otherwise protected is used to refresh a witness’s recollection before testifying at trial or a deposition, the courts are in wide disagreement as to whether the protection is lost by such use. See Weinstein’s Federal Evidence, §612.05 [3] (discussing the approaches courts have adopted). Of note, the conclusion reached in Johnson that there can be a waiver of core work product opinion is the minority view. Id.
Attorneys preparing witnesses for trial or a deposition must be fully aware of these federal and state rules. They compel caution in deciding what documents should be provided to the witness for review, and how that refreshing recollection process is handled, lest a privileged writing containing sensitive information ends up n the hands of an adverse party.
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.
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.
The rule seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection. Parties to litigation need to know, for example, that if they exchange privileged information pursuant ...
The language concerning subject matter waiver—“ought in fairness”—is taken from Rule 106, because the animating principle is the same. Under both Rules, a party that makes a selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation.
The rule provides that a voluntary disclosure in a federal proceeding or to a federal office or agency, if a waiver, generally results in a waiver only of the communication or information disclosed; a subject matter waiver (of either privilege or work product ) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary. See, e.g., In re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D. 307, 312 (D.D.C. 1994) (waiver of work product limited to materials actually disclosed, because the party did not deliberately disclose documents in an attempt to gain a tactical advantage). Thus, subject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner. It follows that an inadvertent disclosure of protected information can never result in a subject matter waiver. See Rule 502 (b). The rule rejects the result in In re Sealed Case, 877 F.2d 976 (D.C.Cir. 1989), which held that inadvertent disclosure of documents during discovery automatically constituted a subject matter waiver.
To assure protection and predictability, the rule provides that if a disclosure is made at the federal level, the federal rule on subject matter waiver governs subsequent state court determinations on the scope of the waiver by that disclosure. Subdivision (b). Courts are in conflict over whether an inadvertent disclosure ...
The rule applies to inadvertent disclosures made to a federal office or agency, including but not limited to an office or agency that is acting in the course of its regulatory, investigative or enforcement authority. The consequences of waiver, and the concomitant costs of pre-production privilege review, can be as great with respect to disclosures to offices and agencies as they are in litigation.
The rule provides a party with a predictable protection from a court order—predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention.
The rule does not address the enforceability of a state court confidentiality order in a federal proceeding, as that question is covered both by statutory law and principles of federalism and comity. See 28 U.S.C. §1738 (providing that state judicial proceedings “shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken”). See also Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 499 (D.Md. 2000) (noting that a federal court considering the enforceability of a state confidentiality order is “constrained by principles of comity, courtesy, and . . . federalism”). Thus, a state court order finding no waiver in connection with a disclosure made in a state court proceeding is enforceable under existing law in subsequent federal proceedings.
Later in the opinion, the Court cites Fisher’s article as justification for its declaration that traditional litigation privileges are retained in congressional investigations. But that Whitewater investigation episode does not support the Court’s assertion. Fisher’s account of the Clinton episode does not carry the water the Supreme Court wants it to tote, as Mike Stern accurately observes:
Specifically, in Mazars, the Supreme Court asserts that “recipients [of congressional subpoenas] have long been understood to retain common law and constitutional privileges.”
Trump v. Mazars represents the U.S. Supreme Court’s most significant ruling on congressional investigations in decades. The case addresses President Donald Trump’s efforts to block congressional subpoenas served on accounting and banking entities in possession of records prior to his assuming office. At the top line, the Court held that congressional subpoenas for the president’s information may be enforceable. However, the Supreme Court also held that the lower courts did not take adequate account of the significant separation-of-powers concerns stemming from subpoenas from the House of Representatives seeking Trump’s financial records. The Court established a framework for evaluating the enforceability of congressional subpoenas that could burden a presidential administration – a framework that envisions an active judicial role. There has been lots of good initial analysis of the Mazars ruling, its 2020 political salience, and its longer-term effects on legislative oversight of the executive branch.
The case addresses President Donald Trump’s efforts to block congressional subpoenas served on accounting and banking entities in possession of records prior to his assuming office. At the top line, the Court held that congressional subpoenas for the president’s information may be enforceable.
But even there, the district court opinion seemed to accept the premise of the common law/Constitution distinction advanced by Congress: that a common law privilege would not be binding on Congress.
But, as a constitutional protection, the presidential communications component of executive privilege may not be simply ignored by Congress or removed by statute.
There is additional evidence that Congress has had no such understanding of retained common law privileges. Congress’s 2020 Congressional Oversight Manual asserts “it is the congressional committee alone that determines whether to accept a claim of attorney-client privilege.” (That is a quotation found in CRS reports dating back to at least 2014). In 2009, Rep. Edolphus Towns (D-N.Y.), then-chair of the House Oversight and Government Reform Committee, asserted: “Congress has the right to refuse…an assertion of the attorney-client privilege.” (See Congressional Due Process FN 220). In a stark example in 1977, a House subcommittee chair reviewed incidents through the U.S. founding and back to Congress’s antecedents in the House of Commons, and declared the precedents “fully sustain rejecting a claim of attorney-client privilege if it impedes in any manner whatsoever the necessary inquiries of the Congress in determining whether a law of the United States may have been violated or whether that law accords sufficient protection to the American people.” (See Congressional Due Process FN 225)