Questions and Answers/Attorney-Client Privilege

 
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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                                          

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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); Massachusetts School of Law v. American Bar Ass'n, 895 F. Supp. 88 (E.D.Pa. 1995); Teltron v. Alexander, 132 F.R.D. 394 (E.D.Pa. 1990); AMP, Inc. v. Fujitsu Microelectronics, Inc., 853 F. Supp. 808 (M.D.Pa. 1994); Marian Bank v. Lawrence Voluck Associates, Inc., 26 Pa. D. & C.3d 48 (1982).  

           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. Co. , 32 F.3d 851 (3d Cir. 1994); Serago v. East Suburban Hosp., 30 D. & C.3d 221 (1983).  

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. Co. , 32 F.3d 851 (3d Cir. 1994).  

                     f.       Communications with attorney acting in role other than as advisor are not privileged.   Massachusetts School of Law v. American Bar Ass'n, 895 F. Supp. 88 (E.D.Pa. 1995); Sedat v. Department of Environmental Resources, 641 A.2d 1243 (Pa.Cmwlth. 1994).  

                     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 Shamokin v. West End Nat. Bank, 22 Pa. D. & C.3d 232 (1982).  

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 ( Pa. Cmwlth. 1994).  

            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 Maryland v. McCulloch, 168 F.R.D. 516 (E.D.Pa. 1996).  

                        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 Vernon Borough, 91 F.3d 515 (3d Cir. 1996); Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995); Fidelity and Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516 (E.D.Pa. 1996); Naglak v. Pennsylvania State University , 133 F.R.D. 18 (M.D.Pa. 1990); Moskowitz v. Lopp, 128 F.R.D. 624 (E.D.Pa. 1989).  

                        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 Vernon Borough, 91 F.3d 515 (3d Cir. 1996). 

            3.      Crime-fraud doctrine  

    a.  Communications made for purpose of getting advice for commission of fraud or  crime fall outside privilege.  United States v. Witmer, 835 F. Supp. 208 (M..D.Pa. 1993), aff'd 30 F.3d 1489 (3d Cir. 1994); United States v. Fisher, 692 F. Supp. 488 (E.D.Pa. 1988).  

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 ( Pa. Super.Ct. 1976).  

                        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 ( Pa. Super.Ct. 1976).  

 

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 Pa. D. & C.4th 131 (1987).  

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. Pennsylvania Nat. Mut. Cas. Ins. Co., 31 D. & C.3d 456 (Pa.Com.Pl. 1981).

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