Transcript Class 8

Ethical Lawyering
Spring 2006
Class 8
1
Rest. 68
Except as otherwise provided in this
Restatement, the attorney-client privilege
may be invoked as provided in § 86 with
respect to:
(1) a communication
(2) made between privileged persons
(3) in confidence
(4) for the purpose of obtaining or
providing legal assistance for the client.
2
Rest. 87
(1) Work product consists of tangible material or
its intangible equivalent in unwritten or oral form,
other than underlying facts, prepared by a lawyer for
litigation then in progress or in reasonable
anticipation of future litigation.
(2) Opinion work product consists of the
opinions or mental impressions of a lawyer; all other
work product is ordinary work product.
(3) Except for material which by applicable law is
not so protected, work product is immune from
discovery or other compelled disclosure to the
extent stated in §§ 88 (ordinary work product) and 89
(opinion work product) when the immunity is
invoked as described in § 90.
3
MR 1.6
(a) A lawyer shall not reveal information
relating to the representation of 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).
4
MR 1.6, comment 3
The attorney-client privilege and work
product doctrine apply in judicial and other
proceedings in which a lawyer may be called as
a witness or otherwise required to produce
evidence concerning a client. The rule of clientlawyer 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 relating to the
representation, whatever its source. A lawyer
may not disclose such information except as
authorized or required by the Rules of
5
Professional Conduct or other law.
Restatement 75
(1) If two or more persons are jointly
represented by the same lawyer in a matter, a
communication of either co-client that otherwise
qualifies as privileged under §§ 68-72 and relates
to matters of common interest is privileged as
against third persons, and any co-client may
invoke the privilege, unless it has been waived
by the client who made the communication.
(2) Unless the co-clients have agreed
otherwise, a communication described in
Subsection (1) is not privileged as between the
co-clients in a subsequent adverse proceeding
between them.
6
Control Group Test for A/C Priv.
“(I)f the employee making the communication, of
whatever rank he may be, is in a position to control or
even to take a substantial part in a decision about any
action which the corporation may take upon the advice of
the attorney, or if he is an authorized member of a body
or group which has that authority, then, in effect, he is (or
personifies) the corporation when he makes his
disclosure to the lawyer and the privilege would apply. In
all other cases the employee would be merely giving
information to the lawyer to enable the latter to advise
those in the corporation having the authority to act or
refrain from acting on the advice."
7
Upjohn
Here, the communications at issue were made by 1)
petitioner's employees to counsel for petitioner acting as
such, 2) at the direction of corporate superiors 3) in order
to secure legal advice from counsel. Information not
available from upper-echelon management was needed
to supply a basis for legal advice concerning compliance
with securities and tax laws, foreign laws, currency
regulations, duties to shareholders, and potential
litigation in each of these areas. The communications
concerned matters within 4) the scope of the employees'
corporate duties, and 5) the employees themselves were
sufficiently aware that they were being questioned in
order that the corporation could obtain legal advice.
8
Upjohn, cont.
6) Pursuant to explicit instructions from
the Chairman of the Board, the
communications were considered "highly
confidential" when made, …, and 7) have
been kept confidential by the company.
9
Rest. 73
When a client is a corporation, . . . the attorney-client
privilege extends to a communication that:
(1) otherwise qualifies as privileged . . . ;
(2) is between an agent of the organization and a privileged
person . . .;
(3) concerns a legal matter of interest to the organization;
and
(4) is disclosed only to:
(a) privileged persons . . . ; and
(b) other agents of the organization who reasonably need
to know of the communication in order to act for the
organization.
10
Cal. Evid. Code 956.5
There is no privilege under this article if
the lawyer reasonably believes that
disclosure of any confidential
communication relating to representation
of a client is necessary to prevent a
criminal act that the lawyer reasonably
believes is likely to result in death of, or
substantial bodily harm to, an individual.
11
Rest. 79, comment f
General waiver of all related communications
is warranted when a party has selectively offered
in evidence before a factfinder only part of a
more extensive communication or one of several
related communications, and the opposing party
seeks to test whether the partial disclosure
distorted the context or meaning of the part
offered. All authorities agree that in such a
situation waiver extends to all otherwiseprivileged communications on the same subject
matter that are reasonably necessary to make a
complete and balanced presentation
12