TreatiseAnswer Book

Attorney-Client Privilege Answer Book (2018 Edition)

 by Christopher S Ruhland
 
 Copyright: 2017

 Product Details >> 

Product Details

  • ISBN Number: 9781402429767
  • Page Count: 280
  • Number of Volumes: 1
  •  

Attorney-Client Privilege Answer Book is a practical resource for attorneys and clients seeking to understand the most significant privilege in the practice of law. The book, written in question-and-answer format, examines the boundaries of the privilege, providing guidance on issues that attorneys grapple with on a regular basis as to what is — and is not — covered by the privilege, and how the privilege is protected and lost.

Among the topics receiving in-depth treatment are what constitutes “attorney,” “client,” and “communication” for purposes of the privilege; choice-of law issues; waiver; and exceptions to the privilege. The 2018 edition is updated and expanded throughout, reflecting the most current state of the law. New material in the 2018 edition includes:

• New discussion of the “functional equivalent” test regarding whether the privilege applies to communications between independent contractors working for a company and the company’s lawyer

• New discussion of whether emails that an employee sends to his or her attorney using his or her employer’s system are confidential

• Updated guidance on preventing waiver of the privilege when privileged documents are inadvertently produced during discovery, using mechanisms provided by Federal Rule of Evidence 502
  Table of Contents
  Preface
Chapter 1: Definitions of the Attorney-Client Privilege
  • : General Definition1-2
  • Q 1.1 : What is the attorney-client privilege?1-2
    • : Other Definitions1-2
    • Q 1.1.1 : What are other leading definitions of the privilege?1-2
  • : State Law Variations1-4
  • Q 1.2 : Do state laws differ in how they define the privilege?1-4
    • Figure 1-1 : State Attorney-Client Privilege Statutes/Regulations1-4
    • Q 1.2.1 : Are corporations treated differently in different states?1-6
  • : Foreign Law Variations1-7
  • Q 1.3 : Is the privilege defined differently in foreign countries?1-7
  • : Compared with Other Doctrines1-8
  • : Work-Product Doctrine1-8
  • Q 1.4 : What is the difference between the attorney-client privilege and the work-product doctrine?1-8
  • : Duty to Preserve Client Confidences1-9
  • Q 1.5 : What is the difference between the attorney-client privilege and the lawyer’s duty to preserve client confidences?1-9
Chapter 2: Historical Development and Policies Underlying the Privilege
  • : Origins of the Privilege2-2
  • Q 2.1 : What are the historical origins of the attorney-client privilege?2-2
  • Q 2.2 : How has the attorney-client privilege evolved over time?2-3
  • TABLE 2-1 : Evolution of the Attorney-Client Privilege2-4
  • : Purpose of the Privilege2-5
  • Q 2.3 : What is the purpose of the modern attorney-client privilege?2-5
  • : Conflicting Policies2-6
  • Q 2.4 : What policies does the attorney-client privilege undermine?2-6
  • : An Unqualified Privilege2-7
  • Q 2.5 : Is the attorney-client privilege subject to a balancing test?2-7
Chapter 3: Identifying Applicable Law
  • : Constitutional Issues3-2
  • Q 3.1 : Does the United States Constitution protect attorney-client communications?3-2
  • : Applicable Law in Federal Court3-3
  • Q 3.2 : What privilege law applies in federal court?3-3
    • : Claims Based on Federal Law3-4
    • Q 3.2.1 : What law applies to claims based on federal law?3-4
    • : Claims Based on State Law3-4
    • Q 3.2.2 : What law applies to state law claims and defenses in federal court?3-4
    • : When More Than One Jurisdiction’s Laws Could Apply3-5
    • Q 3.2.3 : What happens when more than one set of laws could apply?3-5
    • : Bankruptcy Cases3-6
    • Q 3.2.4 : What law applies in bankruptcy cases?3-6
    • : Federal Circuit Appeals3-6
    • Q 3.2.5 : What law applies in Federal Circuit appeals?3-6
    • : Multidistrict Litigation3-7
    • Q 3.2.6 : What law applies in multidistrict litigation cases?3-7
    • : Habeus Corpus Proceedings3-8
    • Q 3.2.7 : What law applies in habeas corpus proceedings?3-8
    • : Change of Venue3-9
    • Q 3.2.8 : What law applies to cases involving a change of venue?3-9
  • : Applicable Law in State Court Cases3-9
  • Q 3.3 : What law applies in state courts?3-9
  • : Impact of Choice of Law Provisions3-10
  • Q 3.4 : What law applies in cases where a contract contains a choice of law provision?3-10
  • : Administrative Proceedings3-10
  • Q 3.5 : What law applies in administrative proceedings?3-10
  • : Foreign Law3-11
  • Q 3.6 : When will a court apply the privilege law of a foreign country?3-11
Chapter 4: Who Is an Attorney?
  • : Bar Membership Requirement4-2
  • Q 4.1 : Must an attorney be a member of the bar?4-2
    • Q 4.1.1 : What if the attorney is licensed to practice in one jurisdiction but gives advice in another?4-2
    • : Exceptions to Bar Membership Requirement4-3
    • Q 4.1.2 : Is there an exception to the bar membership requirement for “quasi-attorneys” or those who are the “functional equivalent” of attorneys?4-3
    • : Patent Agents4-5
    • Q 4.1.3 : Is a patent agent an “attorney” for the purpose of the privilege?4-5
    • : Non-Attorney Tax Practitioners4-5
    • Q 4.1.4 : Is a tax practitioner an “attorney” for the purpose of the privilege?4-5
    • : Client’s Mistaken Belief4-6
    • Q 4.1.5 : What if a client reasonably, but wrongly, believes that someone is a licensed attorney?4-6
  • : Impact of Formal Retention of Attorney4-7
  • Q 4.2 : Must the attorney be formally retained by the client?4-7
  • : Informal Advice to a Friend4-8
  • Q 4.3 : What if the attorney is merely a friend or relative?4-8
  • : The Privilege and In-House Attorneys4-9
  • Q 4.4 : Does the privilege apply equally to in-house attorneys?4-9
  • : Government Attorneys4-12
  • Q 4.5 : Does the privilege apply equally to government attorneys?4-12
  • : Agents of Attorneys4-13
  • Q 4.6 : Can an attorney have privileged communications through the attorney’s agents or employees?4-13
    • Q 4.6.1 : Is an expert the agent of an attorney?4-15
  • : Judges4-15
  • Q 4.7 : Is a judge an “attorney” for the purpose of the privilege?4-15
Chapter 5: Who Is a Client?
  • : Defining “the Client”5-2
  • Q 5.1 : What is the basic definition of a client?5-2
    • Q 5.1.1 : Does the privilege protect consultations by a prospective client before an attorney is retained?5-3
  • : The Corporate Client5-3
  • Q 5.2 : Who may have privileged communications on behalf of a corporate client?5-3
    • : The Control Group Test5-4
    • Q 5.2.1 : Who may have privileged communications on behalf of a corporate client under the “control group” test?5-4
    • : The Subject Matter Test5-5
    • Q 5.2.2 : Who may have privileged communications on behalf of a corporate client under the “subject matter” test?5-5
    • : The Upjohn Test5-6
    • Q 5.2.3 : Who may have privileged communications on behalf of a corporate client under the test articulated in Upjohn?5-6
    • : Non-Employees5-7
    • Q 5.2.4 : When can people who perform work for the corporation but are not employees have privileged communications with the corporation’s lawyer?5-7
    • : Corporate Officers5-8
    • Q 5.2.5 : Is a corporate officer also a client when the corporation is a client?5-8
    • : Shareholders5-9
    • Q 5.2.6 : Are shareholders also a client when the corporation is a client?5-9
    • : Former Employees5-11
    • Q 5.2.7 : Does the attorney-client privilege apply to communications with former employees?5-11
    • : Subsidiaries5-13
    • Q 5.2.8 : Is a parent corporation along with its subsidiaries considered a single client?5-13
    • : Communicating with Corporate Employees5-15
    • Q 5.2.9 : What is a lawyer’s ethical duty when communicating with corporate employees?5-15
  • : The Partnership Client5-15
  • Q 5.3 : Who is the client in the partnership context?5-15
  • : The LLC Client5-16
  • Q 5.4 : Who is the client in the limited liability company context?5-16
  • : Trade Associations5-18
  • Q 5.5 : Who is the client when an attorney represents a trade association?5-18
  • Figure 5-1 : Tips for Attorneys Representing Businesses and Other Organizations5-19
  • : Class Actions5-20
  • Q 5.6 : Who is a client in a class action?5-20
  • : Government Agencies5-21
  • Q 5.7 : Who is a client of a government attorney?5-21
  • : Mistaken Belief That a Person Is a Client5-22
  • Q 5.8 : What if a person reasonably but incorrectly believes that he or she is a client?5-22
  • : Minors5-23
  • Q 5.9 : What happens when the client is a minor?5-23
Chapter 6: The "Communication" Element
  • : Form of Communication6-2
  • Q 6.1 : Must a “communication” be made in a particular form to be protected by the attorney-client privilege?6-2
  • : Facts6-3
  • Q 6.2 : Are facts “communications” for the purpose of the attorney-client privilege?6-3
    • : Pre-Existing Documents and Tangible Things6-3
    • Q 6.2.1 : Are pre-existing documents and other tangible things delivered by a client to an attorney “communications”?6-3
    • : Client’s Notes6-4
    • Q 6.2.2 : Are a client’s notes and other internal communications privileged communications when given to an attorney?6-4
  • : Communications About the Attorney-Client Relationship6-6
  • : Existence of the Relationship6-6
  • Q 6.3 : Are communications about the existence and purpose of the attorney-client relationship privileged?6-6
    • : Circumstances Surrounding a Communication6-7
    • Q 6.3.1 : Are the circumstances surrounding a communication privileged?6-7
    • : Fee Arrangements and Billing Records6-7
    • Q 6.3.2 : Are attorney-client fee arrangements and billing records privileged communications?6-7
  • : Attorney’s Agents6-8
  • Q 6.4 : Are communications between a client and an attorney’s agents privileged?6-8
  • : Lawyers Representing the Same Client6-9
  • Q 6.5 : Are communications between lawyers who represent the same client privileged?6-9
  • : Joint Defense Communications6-9
  • Q 6.6 : Are communications between clients and lawyers engaged in a joint defense privileged?6-9
Chapter 7: The "In Confidence" Element
  • : The Test7-2
  • Q 7.1 : What does it mean for a communication to be made in confidence for purposes of the privilege?7-2
  • Q 7.2 : Does the law presume that attorney-client communications are made in confidence?7-2
  • : Subjective Intent7-3
  • Q 7.3 : Under what circumstances does a client intend for a communication to be confidential?7-3
    • Q 7.3.1 : What is the effect of marking documents as “privileged” or “confidential”?7-4
    • Q 7.3.2 : What happens if a client knows that the communication will later be disclosed to a third party?7-5
  • : Reasonableness7-6
  • Q 7.4 : Under what circumstance is the client’s expectation of confidentiality reasonable?7-6
    • : Duty to Disclose7-7
    • Q 7.4.1 : What if a client has a duty to disclose the information discussed with the attorney?7-7
    • : Nature of the Communication7-8
    • Q 7.4.2 : What if the nature of the communication does not suggest confidentiality?7-8
    • Q 7.4.3 : What happens when employees communicate with their attorneys through their employers’ email system?7-8
    • : Presence of Others7-9
    • Q 7.4.4 : What is the effect of the presence of third parties, in general?7-9
    • Q 7.4.5 : What is the effect of the presence of a family member?7-10
    • Q 7.4.6 : What is the effect of the presence of corporate employees?7-11
    • Q 7.4.7 : What is the effect of the presence of affiliated companies?7-11
    • Q 7.4.8 : What is the effect of communications with co-counsel?7-12
    • Q 7.4.9 : What is the effect of communications with joint clients?7-12
    • Q 7.4.10 : What happens if communications are disclosed to a third party that shares a “common interest” with the client?7-12
    • Q 7.4.11 : What is the effect of the presence of experts?7-13
    • Q 7.4.12 : What is the effect of communications between government employees?7-14
    • Q 7.4.13 : What is the effect of the presence of guards or other inmates in jail?7-14
Chapter 8: "For the Purpose of Seeking or Obtaining Legal Advice"
  • : Defining “Legal Advice”8-2
  • Q 8.1 : What constitutes “legal advice”?8-2
    • : Business Advice8-5
    • Q 8.1.1 : What is pure “business advice” that will not be considered “legal advice”?8-5
    • : Negotiating a Deal8-6
    • Q 8.1.2 : Is an attorney providing legal advice when negotiating a deal?8-6
    • : Tax Advice8-7
    • Q 8.1.3 : Is tax advice provided by a lawyer legal advice?8-7
    • : Fact Investigations8-9
    • Q 8.1.4 : Is advice regarding an attorney’s investigation of facts legal advice?8-9
    • : Lobbying Advice8-10
    • Q 8.1.5 : Is advice regarding lobbying activity legal advice?8-10
  • : Media and Public Relations8-11
  • Q. 8.1.6 : Is advice regarding media and public relations legal advice?8-11
    • : Patent and Trademark Applications8-11
    • Q 8.1.7 : Is advice regarding patent and trademark applications legal advice?8-11
    • : Corporate Compliance Policies8-12
    • Q 8.1.8 : Are corporate compliance policies legal advice?8-12
  • : Client’s Purpose in Seeking Legal Advice8-13
  • Q 8.2 : When is a client’s “purpose” seeking or obtaining legal advice?8-13
    • : Communications with Both an Attorney and Non-Attorney8-15
    • Q 8.2.1 : What happens if the client seeks advice from an attorney and a non-attorney in the same communication?8-15
  • Figure 8-1 : Best Practices for In-House Counsel and Corporate Clients8-16
  • : Presumptions8-17
  • Q 8.3 : Is it presumed that a client who communicates with a lawyer is seeking legal advice?8-17
  • : Implicit Versus Express Request for Legal Advice8-18
  • Q 8.4 : Must a client expressly seek legal advice?8-18
  • : Seeking Mixed Advice in a Single Document8-19
  • Q 8.5 : What happens when a single document describes or requests both legal and non-legal advice?8-19
Chapter 9: Who May Assert or Waive the Privilege?
  • : The Right to Assert or Waive9-2
  • : The Client9-2
  • Q 9.1 : Who has the right to decide whether to assert or waive the privilege?9-2
  • : Agents of the Client9-3
  • Q 9.2 : May a client’s agent assert or waive the privilege?9-3
  • : The Corporate Client9-4
  • Q 9.3 : Who may assert the privilege on behalf of a corporation or other organization?9-4
    • : Management Changes9-5
    • Q 9.3.1 : Who has standing when a corporation changes management?9-5
    • : Asset Sales9-6
    • Q 9.3.2 : What happens if a corporation sells assets associated with privileged communications?9-6
    • : Corporate Bankruptcy9-7
    • Q 9.3.3 : Who has standing when a corporation is in bankruptcy?9-7
  • : Trusts9-8
  • Q 9.4 : Who has standing when a trustee is replaced?9-8
  • : Death of a Client9-8
  • Q 9.5 : What happens to the privilege when a client dies?9-8
  • : Bankruptcy of Individual Client9-9
  • Q 9.6 : Who controls the privilege when an individual is in bankruptcy?9-9
  • : Government9-10
  • Q 9.7 : Who has standing to assert or waive the privilege on behalf of the government?9-10
  • : Joint Possession of Privilege9-11
  • Q 9.8 : Who has standing when two or more clients jointly hold the privilege?9-11
  • : Assignment of the Privilege9-13
  • Q 9.9 : May a client assign or transfer the client’s privilege to someone else?9-13
Chapter 10: Protecting the Privilege During a Judicial Proceeding
  • : Intentional Disclosure10-2
  • Q 10.1 : When might a party want to intentionally disclose privileged communications in a judicial proceeding?10-2
  • : Inadvertent Disclosure10-3
  • : In General10-3
  • Q 10.2 : How can parties prevent inadvertent waiver of the attorney-client privilege during discovery?10-3
    • : Depositions10-5
    • Q 10.2.1 : How can inadvertent disclosure be avoided during depositions?10-5
    • : Written Discovery Requests10-6
    • Q 10.2.2 : How can inadvertent disclosure be avoided when responding to written discovery requests?10-6
  • : Agreements by the Parties10-8
  • Q 10.3 : What agreements or orders in litigation can prevent waiver through inadvertent disclosure?10-8
  • : Use of Disclosed Information10-10
  • Q 10.4 : Can a lawyer use inadvertently disclosed privileged communications during litigation before a court has ruled on a privilege claim?10-10
  • : Former Employees10-11
  • Q 10.5 : How can parties prevent former employees from disclosing privileged information?10-11
  • : Protecting the Privilege During Trial10-11
  • Q 10.6 : How can a party protect the attorney-client privilege during trial?10-11
  • Q 10.7 : Will a negative inference be drawn if a party asserts the attorney-client privilege?10-12
Chapter 11: Waiver of the Privilege
  • : In General11-2
  • Q 11.1 : Who may waive the attorney-client privilege?11-2
  • Q 11.2 : What is a waiver of the attorney-client privilege?11-2
  • : Effect of Disclosure11-3
  • Q 11.3 : When does disclosure of privileged materials waive the privilege?11-3
    • : Voluntary Disclosure11-4
    • Q 11.3.1 : Is the privilege waived when privileged materials are voluntarily disclosed?11-4
    • : Involuntary Disclosure11-6
    • Q 11.3.2 : Is the privilege waived when materials are involuntarily disclosed?11-6
    • : Inadvertent Disclosure11-7
    • Q 11.3.3 : Is the privilege waived when privileged materials are inadvertently disclosed?11-7
    • : Failure to Object11-9
    • Q 11.3.4 : Is the privilege waived by failure to object to disclosure?11-9
  • : Effect of a Waiver11-10
  • Q 11.4 : What is the effect of a waiver of the privilege?11-10
  • : Partial Disclosure11-12
  • Q 11.5 : What happens when only a portion of a privileged communication is disclosed?11-12
Chapter 12: The Crime-Fraud Exception
  • : Definition12-2
  • Q 12.1 : What is the crime-fraud exception to the attorney-client privilege?12-2
  • Q 12.2 : Does the crime-fraud exception apply only when the crime or fraud in question has actually been completed?12-3
  • : Supporting Policies12-3
  • Q 12.3 : What are the policy reasons for not protecting confidences designed to effect a future crime or fraud?12-3
  • : What Must Be Shown12-5
  • Q 12.4 : What must be shown for the crime-fraud exception to apply?12-5
    • Q 12.4.1 : May a court conduct an in camera review of attorney-client communications to determine whether the crime-fraud exception applies to those communications?12-5
    • Q 12.4.2 : Is a close temporal relationship between attorney-client communications and a crime or fraud sufficient to establish the applicability of the crime-fraud exception?12-7
  • : What Must Be Disclosed Under the Exception12-8
  • Q 12.5 : What communications must be disclosed once the crime-fraud exception has been established?12-8
  • : Applicability Beyond Crime and Fraud12-10
  • Q 12.6 : Can the crime-fraud exception apply in cases not involving a crime or fraud?12-10
Chapter 13: The Fiduciary Exception
  • : Definition13-2
  • Q 13.1 : What is the fiduciary exception?13-2
  • : Factors to Be Considered13-4
  • Q 13.2 : What factors do courts consider in applying the fiduciary exception?13-4
  • : When Does the Exception Apply?13-6
  • Q 13.3 : In what contexts have courts applied the fiduciary exception?13-6
    • : Corporate Cases13-6
    • Q 13.3.1 : When does the fiduciary exception apply in corporate cases?13-6
    • : Non-Corporate Cases13-7
    • Q 13.3.2 : When does the fiduciary exception apply outside the corporate context?13-7
Chapter 14: Other Exceptions
  • : Self-Protection Exception14-2
  • Q 14.1 : What is the self-protection exception to the attorney-client privilege?14-2
    • Q 14.1.1 : How does the self-protection exception apply in malpractice claims?14-3
    • Q 14.1.2 : How does the self-protection exception apply in cases involving allegations of ineffective assistance of counsel?14-5
    • Q 14.1.3 : How does the self-protection exception apply in fee disputes?14-5
    • Q 14.1.4 : In what other circumstances might the self-protection exception apply?14-5
  • : Testamentary Exception14-6
  • Q 14.2 : What is the testamentary exception to the attorney-client privilege?14-6
  • : Public Policy Exception14-8
  • Q 14.3 : Is there a public policy exception to the attorney-client privilege?14-8
  Index

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