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ATTORNEY CLIENT PRIVILEGE AND
WORK PRODUCT PROTECTION
FOR COLLEGES AND UNIVERSITIES Susan
B. Smith Temple
University Charisse
R. Lillie Ballard
Spahr Andrews & Ingersoll October,
1997
1)
ATTORNEY CLIENT PRIVILEGE
A.
Rule of Law and Elements of Privilege
1.
The Rule: In a civil
matter counsel shall not be competent or permitted to testify to
confidential communications made to him by his client, nor shall the
client be compelled to disclose the same, unless in either case this
privilege is waived upon the trial by the client.
42 Pa.C.S.A. '
5928.
2.
Elements of privilege: (
1.
asserted holder
of privilege is or sought to become client; (
2.
person to whom
communication was made (a) is member of bar or of court or his or her
subordinate, and (b) in connection with communication was acting as
lawyer; (
3.
communication
relates to fact of which attorney was informed by his client, without
presence of strangers, for purpose of securing primarily either opinion
of law, legal services, or assistance in some legal proceeding, and not
for purpose of committing crime or tort; and (
4.
privilege has
been claimed and not waived by client.
Scott Paper Co. v. United States, 943 F. Supp. 489 (E.D.Pa.
1996), aff'd, 943 F. Supp. 501 (E.D.Pa. 1996); Fidelity and
Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516 (E.D.Pa. 1996);
Garvey v. National Grange Mut. Ins. Co., 167 F.R.D. 391 (E.D.Pa.
1996);
3.
Purpose/Effect
a.
To ensure that client remains free from apprehension that
consultations with legal adviser will be disclosed and to encourage
client to reveal to attorney those confidences necessary for attorney to
provide advice and representation. Rhone-Poulenc
Rorer, Inc. v. Home Indem.
b.
To promote public interest in observance of law and
administration of justice. United
States Fidelity & Guar. Co. v. Barron Industries, Inc., 809 F.
Supp. 355 (M.D.Pa. 1992).
c.
Because assertion of privilege hinders search for truth,
privilege is narrowly construed. Teltron
v. Alexander, 132 F.R.D. 394 (E.D.Pa. 1990).
4.
What is protected
a.
Communications, including verbal statements, documents and
tangible objects conveyed to attorney in confidence for purpose of
obtaining any legal advice. Scott
Paper Co. v. United States, 943 F. Supp. 489, aff'd, 943 F.
Supp. 501 (E.D.Pa. 1996).
b.
The presence of third parties during confidential communication
between attorney and client does not vitiate privilege so long as third
party is attorney's or client's agent or possesses commonality of
interest with client. In re Grand Jury Investigation, 918 F.2d
374 (3d Cir. 1990); Miller v. Haulmark Transport Systems, 104
F.R.D. 442 (E.D.Pa. 1984).
c. But,
third party must be essential to the communications to safeguard
privilege. See Teltron,
Inc. v. Alexander, 132 F.R.D. 394 (E.D.Pa. 1990); Miller v.
Haulmark Transport Systems, 104 F.R.D. 442 (E.D.Pa. 1984).
5.
Burden of proving existence of privilege
a.
The burden of proving the existence of the privilege is on the
individual asserting the privilege.
Stabilus v. Haynsworth, et al., 144 F.R.D. 258 (E.D.Pa.
1992); Teltron, Inc. v. Alexander, 132 F.R.D. 394 (E.D.Pa. 1990).
6.
What is not protected
a.
Factual circumstances surrounding communication are not
privileged (e.g., who was present, where conversation took
place). See Scott
Paper Co. v. United States, 943 F. Supp. 489, aff'd, 943 F.
Supp. 501 (E.D.Pa. 1996); United States Fidelity & Guar. Co. v.
Barron Industries, Inc., 809 F. Supp. 355 (M.D.Pa. 1992); Stabilus
v. Haynsworth, 144 F.R.D. 258 (E.D.Pa. 1992).
b.
Even in discussion between attorney and client, privilege does
not attach to a discussion of the facts.
United States Fidelity & Guar. Co. v. Barron Industries,
Inc., 809 F. Supp. 355 (M.D.Pa. 1992).
c. Facts
communicated by the attorney to the client are not protected, except to
the extent that those communications were based on facts originally
revealed by the clients. In
re Tire Workers Asbestos Litigation, 125 F.R.D. 617 (E.D.Pa. 1989); see
City of Shamokin v. West End Nat. Bank, 22 Pa. D. & C.3d 232
(1982).
d. Conveyance
of facts acquired from persons or sources other than client is not
privileged. 42 Pa.C.S.A. '
5928, Garvey v. National Grange Mut. Ins., 167 F.R.D. 391 (E.D.Pa.
1996); see United States Fidelity & Guar. Co. v. Barron
Industries, Inc., 809 F. Supp. 355 (M.D.Pa. 1992). e.
Relevance is not standard for determining whether privileged
communication is subject to disclosure, no matter how probative.
Rhone-Poulenc Rorer, Inc. v. Home Indem.
f.
Communications with attorney acting in role other than as advisor
are not privileged.
g. Attorney
testifying about communications where no attorney-client relationship
existed, even though attorney previously had represented client, are not
privileged. Panko v.
Alessi, 524 A.2d 930 (Pa.Super. 1987).
7.
Who Holds Privilege
a.
The privilege belongs to client, but attorney may assert
privilege on client's behalf. Only
client, however, can waive privilege.
Maleski v. Corporate Life Ins. Co., 646 A.2d 1 (Pa.Cmwlth.
1994); City of
b.
In corporate context, privilege extends to those communications
between attorney and all agents or employees of organization who are
authorized to act or speak for organization in relation to subject
matter of communication. Scott
Paper Co. v. United States, 943 F. Supp. 489, aff'd, 943 F.
Supp. 501 (E.D.Pa. 1996).
B.
How to Maintain Privilege
1.
Must particularize circumstances of privilege:
party resisting discovery must show (
1.
asserted holder
of privilege is or sought to become client; (
2.
person to whom
communication was made is member of bar or subordinate and is acting as
lawyer in connection with the communications; (
3.
communication
relates to fact of which attorney was informed by client without
presence of strangers for purpose of securing opinion of law, legal
services, or assistance in some legal proceeding, not aid to commit
crime or tort; and (
4.
privilege has
been claimed and as not waived by client.
Cf. Garvey
v. National Grange Mut. Ins., 167 F.R.D. 391 (E.D.Pa. 1996); Caplan
v. Fellheimer Eichen Braverman & Kaskey, 882 F. Supp. 1532 (E.D.Pa.
1995); Stabilus v. Haynsworth, et al., 144 F.R.D. 258 (E.D.Pa.
1992).
2.
Inadvertent disclosure
a.
Inadvertent disclosure may constitute a limited, rather than
general waiver of privileged communications.
See United States v. Keystone Sanitation Co., Inc.,
899 F. Supp. 206 (M.D.Pa. 1995).
3.
Joint defense
a.
Communications between attorneys for different individuals are
privileged if communications are part of ongoing and joint effort to set
up common defense strategy for the individuals.
Eisenberg v. Gagnon, 766 F.2d 770 (3d. Cir. 1985).
b.
Joint defense protection is not defeated even if parties have
some adverse interests. Eisenberg
v. Gagnon, 766 F.2d 770 (3d. Cir. 1985).
C.
How to Overcome Privilege
1.
Explicit waiver
a.
Client may waive privilege by deliberately and knowingly failing
to claim it either personally or through another.
Maleski v. Corporate Life Insurance Co., 646 A.2d 1 (
2.
Implicit waiver ("at issue exception")
a. At issue
exception applies where client asserts a claim or
defense and attempts to prove that claim or defense
by disclosing or describing an attorney-client communication.
See
Fidelity and Deposit Co. of
b. Privilege is
waived for relevant communications upon which client relied in forming
his/her actions when client places that communication at issue as claim
or defense in litigation. Livingstone
v. North Belle
c.
Implicit waiver is limited in breadth.
A party can implicitly waive the attorney-client privilege in
some respects, but only as to information for which the opposing party
has shown a true need and without which they would be unfairly
prejudiced. Livingstone v. North Belle
3.
Crime-fraud doctrine
a.
Communications made for purpose of getting advice for commission
of fraud or crime fall outside privilege.
4.
Death
a.
The attorney client privilege generally survives the client's
death after which it may be asserted by his/her personal representative.
Cohen v. Jenkintown Cab Co., 357 A.2d 689 (
b.
The privilege held by a client, now deceased, may be overcome
when the interest of justice so requires.
See Cohen v. Jenkintown Cab Co., 357 A.2d 689 (
2)
WORK PRODUCT IMMUNITY
A.
Definitions
1.
Pa.R.C.P. No.4003.3 - Trial Preparation Material Generally
a.
Subject to the provisions of Rules 4003.4 and 4003.5, a party may
obtain discovery of any matter discoverable under Rule 4003.1 even
though prepared in anticipation of litigation or trial by or for another
party or by or for that other party's representative, including his
attorney, consultant, surety, indemnitor, insurer or agent.
The discovery shall not include disclosure of the mental
impressions of a party's attorney or his conclusions, opinions,
memoranda, notes or summaries, legal research or legal theories.
With respect to the representative of a party other than the
party's attorney, discovery shall not include disclosure of his mental
impressions, conclusions or opinions respecting the value or merit of a
claim or defense or respecting strategy or tactics.
2.
Fed. R. Civ. P. 26(b)(3) - Trial Preparation:
Materials
a.
Subject to the provisions of subdivision (b)(4) of this
rule, a party may obtain discovery of documents and tangible things
otherwise discoverable under subdivision (b)(1) of this rule and
prepared in anticipation of litigation or for trial by or for another
party or by or for that other party's representative (including the
other party's attorney, consultant, surety, indemnitor, insurer, or
agent) only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of the party's case
and that the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing
has been made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or
other representative of a party concerning the litigation.
B.
Notable Points
1.
Distinctions between state and federal rules
a.
In Pennsylvania, one can obtain fact work product without
a showing of substantial need and undue hardship.
Thus, there is no protection for fact work product in
Pennsylvania as exists in the federal system.
Pa.R.C.P. No.4003.3
b.
In Pennsylvania, the opinion work product of an attorney
does not have to be developed in anticipation of litigation so long as
the attorney acts in his/her professional capacity.
Sedat v. Department of Environmental Resources, 641 A.2d
1243 (Pa.Cmwlth. 1994). Cf. In Re Henning Estate, 4 D.
& C. 4th 462 (1989).
c.
In Pennsylvania, work product protection afforded an attorney is
treated differently than is the protection afforded the party's
representative. The federal rules treat the two equally.
Both state and federal rules also give an attorney's agent the
same protection as is given an attorney if the agent=s
work product contains the attorney=s
thoughts, impressions, views, strategy or other similar material that
was produced in anticipation of litigation.
Brant v. Turnamian, 9 D. & C. 4th 216 (1991).
(1)
In Pennsylvania, there is no protection for a representative's
notes or memoranda of an oral interview of a witness who signs no
written statements. Edwards v. Grumman Allied Industries, Inc., 2
Pa. D. & C.4th 464 (1988); Tate v. Philadelphia Sav. Fund Society,
1
d.
In Pennsylvania, documents prepared in anticipation of
litigation are protected under the work product doctrine only for the
litigation for which they are prepared.
Weeks v. The Travelers Companies, 7 D. & C.4th 121
(1990); Yohe v. Nationwide Mutual Life Ins. Co., 7 D. & C.4th
300 (1990).
2.
Expert statements
a.
Pennslvania rule
(1)
Under Rule 4003.5(a)(3), the opinion of an expert who has been
retained or specially employed by another party in anticipation of
litigation, except a medical expert, who is not expected to be called as
a trial witness will be discoverable only upon a showing of exceptional
circumstances under which it is impracticable to obtain facts or
opinions on the subject matter by other means.
b.
Federal rule
(1)
Under Fed. R. Civ. P. 2(b)(4)(B), the opinion of an expert who
has been retained or specially employed for use at trial, but is not
expected to be called as a witness, will be discoverable only upon a
showing of exceptional circumstances under which it is impracticable to
obtain facts or opinions on the subject matter by other means.
3.
Attorney's or representative's opinions at issue
a.
An attorney's opinion work product may be discoverable if the
opinion becomes a relevant issue in an action.
For instance, such opinion could be the central issue in a cause
of action for malicious prosecution or abuse of process where the
defense is based on good faith reliance of a legal opinion of counsel.
See explanatory note to Rule 4003.3; Nedrow v.
Pennsylvania National Mutual Casualty Insurance Co., 31 D. & C.
3d 456 (1981); Wills v. Pennsylvania Millers Mutual Ins. Co., 14
D. & C. 3d 705 (1980).
b.
In all other circumstances, the protection afforded to an
attorney's opinion work product is unqualified.
Sedat v. Department of Environmental Resources, 641 A.2d
1243 (Pa.Cmwlth. 1994).
4.
Corporate counsel: Multiple
representation
a.
Where counsel is employed by an insurance company and represents
both the insurer and the insured, no privilege exists to withhold
communications made by counsel when a dispute arises between the
clients. Nedrow v.
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