Table of Contents

Chapter 10. Privileges 1

A. In General 1

B. Attorney-Client Privilege 2

1. Introduction 2

2. Elements of the Privilege 5

a. Communication 5

b. In Confidence 6

c. Between Attorney and Client 8

d. To Facilitate Legal Service 13

3. Waiver 16

4. Crime-Fraud Exception 20

C. Spousal Privileges 21

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 10. Privileges

A. In General

Introduction

• Privileges differ from other rules of evidence in four important ways:

  • (1) They are not just rules of admissibility; they govern whether evidence can be introduced at trial, but also whether disclosure can be compelled before trial.

  • (2) Some parallel rules of professional responsibilities that impose duties of confidentiality, though they sometimes do not.

  • (3) Their purpose is not to improve accuracy of fact finding; sometimes they impair fact finding. Rather, they are typically justified on some goal outside the litigation process, often the protection of some relationship thought to be socially beneficial.

  • (4) Privileges are not codified in FRE. Only FRE 501 is relevant, and it directs federal courts to continue to develop and apply a federal common law of privileges—except with respect to civil claims or defenses for which state law provides the rules of decision. For those issues (typically raised in diversity cases), FRE 501 treats privileges as matters of substance rather than procedure (similar to second sentence of FRE 601).

FRE 501. Privilege in General

• The common law--as interpreted by United States courts in the light of reason and experience--governs a claim of privilege unless any of the following provides otherwise:

  • the United States Constitution;

  • a federal statute; or

  • rules prescribed by the Supreme Court.

• But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

McCormick on Evidence

• Most common privileges:

  • against self-incrimination

  • communications between husband and wife, attorney and client, physician and patient.

• The warrant for privileges is the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.

Mueller & Kirkpatrick, Evidence

• Article V of FRE originally proposed to codify the law of privileges, but that proposal was rejected.

• Congress did, however, remove privileges from the general rulemaking power of the Supreme Court and adopted legislation providing that no formal rules of privilege promulgated by the Court can become effective until approved by an Act of Congress [28 USC §2074(b)].

B. Attorney-Client Privilege

1. Introduction

Introduction

• Attorney-client privilege is among the oldest privileges, and is a model for most professional privileges.

• Critics note it offers tremendous assistance to wrongdoers and coincides suspiciously with the professional interests of the bar.

Swidler & Berlin v. United States, 524 U.S. 3999 (1998)

Facts:

• D, an attorney, made notes of initial interview with client shortly before client’s death. P, government, represented by Office of Independent Counsel, seeks his notes for use in criminal investigation.

  • Client was Vincent W. Foster Jr., a White House official potentially involved in illegal conduct, who met with D to seek legal representation concerning possible congressional investigations.

  • D took three pages of notes, one of the first of which is the word “Privileged.” Nine days later, client committed suicide.

• Grant jury, at request of P, issued subpoenas for notes. D filed motion to quash, claiming attorney-client privilege. TC denied summons, but CoA reversed.

Opinion (Rehnquist):

• Purpose of privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.

• Issue here is the scope of the privilege: whether privilege survives death of the client.

  • Interpretation of privilege’s scope is guided by “principles of common law as interpreted by the courts in the light of reason and experience.” FRE 501.

  • Testamentary exception: general rule with respect to confidential communications is that they are privileged during testator’s lifetime and also after the testator’s death unless sought to be disclosed in litigation between testator’s heirs.

    • Rationale for such disclosure is that it furthers client’s intent.

• Posthumous application of the privilege furthers its goals of encouraging frank communication with counsel.

  • P argues only clients intending to perjure themselves would be chilled, as opposed to truthful clients or those asserting their Fifth Amendment privilege. But the attorney-client privilege serves broader purposes than the Fifth Amendment privilege against self-incrimination.

  • Loss of evidence is not so severe, since evidence wouldn’t exist without the privilege (clients wouldn’t have disclosed in absence of privilege).

• Privileges apply in criminal and civil cases alike.

  • Ex post balancing test of information against client’s interests, as proposed by P, would introduce substantial uncertainty.

  • Crime-fraud and testamentary exceptions are consistent with the purposes of the privilege, while a posthumous exception in criminal cases would appear at odds with the goal of encouraging frank discussion.

• Attorney-client privilege survives the death of the client in a case such as this.

  • FRE 501 does not mandate that a rule, once established, shall endure for all time.

• CoA reversed.

United States v. Jicarilla Apache Nation, 564 U.S. ____ (2011)

Facts:

• Proceeds from natural resources on land occupied by Tribe (P) were held in trust by Department of Interior (D). P sued D for damages arising from alleged mismanagement of funds in trust.

  • D asserted attorney-client privilege with regard to (1) requests for legal advice relating to trust administration sent by personnel at D to Office of the Solicitor, and (2) legal advice sent from Solicitor’s office to personnel at Interior and Treasury Departments.

• TC ordered disclosure of almost all documents, and CoA denied D’s petition for mandamus. Both reasoned the trust relationship between P and D rendered attorney-client privilege inapplicable.

Opinion (Alito):

• The objectives of the attorney-client privilege apply to governmental clients.

  • The privilege aids government entities in obtaining legal advice founded on a complete and accurate picture.

  • Unless applicable law provides otherwise, government may invoke attorney-client privilege in civil litigation to protect confidential communications between government officials and government attorneys.

  • Governmental agencies and employees enjoy the same privilege as nongovernmental counterparts.

• Fiduciary exception: when a trustee obtains legal advice to guide the administration of a trust, and not for the trustee’s own defense in litigation, the beneficiaries were entitled to the production of documents related to that evidence.

  • Courts reasoned that the privilege does not apply here because the legal advice was sought for the beneficiary’s benefit and was obtained at the beneficiary’s expense by using trust funds to pay the attorney’s fees.

  • Riggs Nat. Bank of Washington, D.C. v. Zimmer: leading fiduciary exception case, court reasoned that (1) beneficiaries were the “real clients” of the attorney who advised the trustee on trust-related matters, so the attorney-client privilege properly belonged to beneficiaries rather than trustees; and (2) trustee’s duty to furnish trust-related information to the benefactors outweighed their interest in attorney-client privilege.

• But the Government is not a private trustee.

  • The relationship at hand is defined and governed by statutes, rather than the common law. This statutory relationship is limited compared to a trust relationship between private parties at common law.

• The two features justifying the fiduciary exception are absent in the relationship Congress established between the United States and the Tribe.

  • US did not obtain legal advice as mere representative of Tribe, nor is Tribe the real client for whom advise is intended. Government seeks legal advice here in a sovereign capacity, akin to a personal capacity rather than a fiduciary one. Government attorneys are paid out of Congressional appropriations at no cost to the Tribe.

    • Courts look to the source of funds as a strong indicator of precisely who the real clients are and a significant factor in determining who ought to have access to the legal advice.

  • Defined by statute, the US does not have the same common-law disclosure obligations as a private trustee.

• By law and regulation, the documents at issue are classes “property of the United States.”

  • Ownership of the resulting records are a significant factor in deciding who ought tohave access to the document.

Dissent (Sotomayor):

• Privileges should be construed narrowly.

• The US is in a conventional fiduciary relationship, and so the exception applies.

• This decision thwarts efforts to address the long history of government mismanagement of Indian resources.

Bentham, Rationale of Judicial Evidence

• The attorney-client privilege only helps those who have committed wrongdoing. If the information is exculpatory, it would come out. If it is inculpatory, it should come out.

Simon, The Kaye Scholar Affair

• Rationale for confidentiality with respect for ongoing or anticipated wrongful behavior is that it induces people to seek legal advice. But a person who intends to abide by the law in any event does not need this inducement. So the question is why is it important to induce people who think they might be inclined to violate the law to seek legal advice.

• The bar argues inducing people with a shaky commitment to law abidingness to seek legal advice is good because it gives lawyers an opportunity to dissuade them from illegal conduct.

Barton, Do Judges Systematically Favor the Interests of the Legal Profession?

• Attorney-client privilege has enjoyed a unique and vaunted position among all professional privileges.

• It allows attorneys to offer an exceptional produce to their clients.

2. Elements of the Privilege

Introduction

• Application of attorney-client privilege typically requires four things: (a) a communication, (b) in confidence, (c) between a lawyer and client, (d) in the course of provision of professional legal services.

a. Communication

United States v. Kendrick, 331 F.2d 110 (4th Cir. 1964)

Facts:

• D appeals denial of motion to vacate sentence on the grounds the petitioner was incompetent to stand trial.

• Court admitted testimony by D’s attorney as to his demeanor.

Opinion (Per Curiam):

• Court does not agree with D that the testimony of his trial counsel should have been excluded at the post-conviction hearing on the basis of attorney-client privilege.

• It is the substance of the communications which is protected, not the fact there have been communications.

  • Also excluded from the privilege are physical characteristics of the client, such as his complexion, demeanor, bearing, sobriety, and dress.

  • Such things are observable by anyone who talked with the clinent.

  • The privilege protects only the client’s confidences, not things which at the time are not intended to be held in the breast of the lawyer, even though the attorney-client relation provided the occasion for the lawyer’s observation of them.

• Here, attorney testified to such nonconfidential matters:

  • D was responsive, readily supplied attorney with his version of facts and names of others involved, was logical in conversation and reasoning, and appeared to know everything that went on before and during trial.

  • No mention was made of substance of any communication; witness testified only about client’s cooperativeness and awareness.

• All of the matters to which attorney testified are objectively observable particularizations of the client’s demeanor and attitude, made at a time when neither client nor lawyer manifested any reason to suppose they were confidential, so they were not within privilege.

Tornay v. United States, 840 F.2d 1424 (9th Cir. 1988)

Facts:

• D were investigated by IRS. IRS sought to establish tax liability on net worth, net expenditure basis, and so summoned three attorneys whom D had retained in connection with an earlier criminal conviction, for information regarding fees paid.

  • When attorneys complied with summonses, D discharged them. D hired a new lawyer, and IRS did the same thing. New attorney refused to comply with summons, and D insists they will discharge attorney if he does.

Opinion (Wright):

• Because the privilege has the effect of withholding relevant information from the fact finder, it applies only where necessary to achieve its purpose.

  • Accordingly, it protects only those disclosures necessary to obtain informed legal advice which might not have been made in the absence of the privilege.

  • Fee information generally is not privileged.

  • The privilege is not to immunize a client from liability stemming from expenditures for legal services.

• Baird v. Koerner: involved several clients who directed attorney to tender anonymously to IRS delinquent tax payments and interest. IRS issues summons requiring counsel to identify clients.

  • Disclosure of client’s identity was protected by attorney-client privilege because identifying the clients would be tantamount to conveying a privileged communication in which the clients disclosed their delinquent tax liabilities.

• Baird and its progeny do not apply here.

  • D’s identity was known to IRS and agency sought only the amount, date, and form of payments. D have not demonstrated the existence of exceptional circumstances that would make disclosure tantamount to revealing a confidential communication.

• TC did not abuse discretion in denying petition to quash.

b. In Confidence

United States v. Gann, 732 F.2d 714 (9th Cir. 1984)

Facts:

• D convicted of possessing sawed-off shotgun. After a bank robbery, police searched D’s home and found the gun in his car. Cop decided to arrest D, who was in the house talking on the phone in the presence of several cops who were searching the house.

  • One detective told Cop, “I think he is talking to his lawyer.” Cop waited in room in order to arrest D as soon as he got off the phone.

  • Cop heard D state on phone, “Looks like I’m going to have to go downtown—ex-con in possession, I guess.”

  • Prosecutor later introduced these statements to prove D had knowledge of the gun found in vehicle.

Opinion (Alarcon):

• Because D knew or should have known that third parties were present, his attorney-client privilege claim fails.

  • The burden of proving that the privilege applies falls upon the party asserting it.

  • The statement was made with the knowledge he was surrounded by police officers searching his residence; there is no evidence that Cop purposely positioned himself by the phone so that he could eavesdrop on a privileged communication.

    • Rather, evidence shows Cop merely walked into room and waited for D to complete his call.

• Affirmed.

United States v. Evans, 113 F.3d 1457 (7th Cir. 1997)

Facts:

• D indicted on racketeering charges, appeals TC’s order granting P’s pretrial motion in limine to admit testimony by attorney Koch, which D asserts is protected by attorney-client privilege.

  • Attorney Holden, who is also a local police officer, contacted D—his long-time friend and occasional client.

  • Holden arranged for D to meet with defense attorneys so D could explain his situation, seek legal advice, and decide whether to retain one of the attorneys.

  • After scheduling appointment on D’s behalf with Attorney Koch, Holden took D to Koch’s office where the three conferred.

• D argues Holden was present at the meeting with D and Koch in his capacity as D’s attorney.

  • Holden testified that he was present at the meeting in order to advice D as to the relative abilities of the several defense attorneys consulted.

  • Koch expressly testified that Holden stated he was present at the meeting not as an attorney, but as a personal friend and potential character witness for D.

  • TJ recognized resolution of this capacity issue turned on a credibility determination. TJ resolved the issue by crediting Koch’s testimony over Holden’s.

Opinion (Cummings):

• Attorney-client privilege shields only those communications by a client to an attorney that were intended to be confidential.

  • Thus, attorney-client privilege will not generally shield from disclosure statements made by a client to his attorney in the presence of a third party who is not an agent of either the client or the attorney.

  • The presence of a third party at an attorney-client consultation does not defeat the privilege where the third party’s presence was needed to make the conference possible or to assist the attorney in rendering legal services.

• D has failed to carry his burden of proving Holden’s presence was necessary to accomplish the objective of his consultation.

  • TJ discredited Holden’s testimony, upon which D relies. Giving effect to TJ’s factual findings, court here concluded Holden was present merely as a friend and potential character witness. This is plainly insufficient to establish the necessity.

• Affirmed.

United States v. Lawless, 709 F.2d 485 (7th Cir. 1983)

Facts:

• D, an attorney, was retained by co-executors of an estate to prepare the estate tax return of the deceased.

  • IRS sought to obtain from D all documents relating to or used in preparation of the return. D cited attorney-client privilege and refused to comply.

  • D argues information transmitted to him as the attorney preparing the tax return, but not disclosed on the return itself, is protected by the privilege.

• TJ ruled that two of the documents were privileged.

Opinion (Grant):

• When information is transmitted to an attorney with the intent that the information will be transmitted to a third party (in this case a tax return) such information is not confidential.

  • Even if the information is not used in the tax return, if the client transmitted the information so that it might be used on the tax return, such a transmission destroys any expectation of confidentiality which might have otherwise existed.

• Reversed.

Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530 (N.D. Ill. 2000)

Facts:

• P sued D for infringing P’s patent to a pharmaceutical. D moves to compel P to produce certain documents listed in privilege log.

Opinion (Bobrick):

• Under Lawless, when information is transmitted to an attorney with the intent that it be transmitted to a third party, the material is not privileged. In the end, however, the question is whether the document in question reveals, directly or indirectly, the substance of a confidential attorney-client communication.

• Courts have struggled with application of attorney-client privilege to practice of patent law.

  • Conduit theory: patent attorneys are conduits of information between a client and the Patent Office where the lack of an expectation of confidentiality defeats application of the privilege.

  • Others reject conduit theory: all communications between client and patent attorney are requests for legal advice in that they pertain to assessment of patentability and preparation and prosecution of the patent application.

  • Other courts have attempted to draw a line between technical and legal information which, in the context of patent law, is not easily drawn.

• Spalding: Court discussed application of privilege to materials that were substantially technical but produced in a legal setting.

  • It is enough that the overall tenor of the document indicates that it is a request for legal advice or services.

  • An attorney cannot evaluate patentability or prepare a competent patent application without knowing the prior art and obtaining the relevant technical information from the inventors.

• Accordingly, documents prepared in order to allow attorneys to assess patentability and sift information to prepare applications are immune from discovery under attorney-client privilege.

c. Between Attorney and Client

United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)

Facts:

• D is accountant (not attorney) employed at a law firm, supervised by attorneys. IRS was investigating tax violations by a client of the law firm, and subpoenaed D.

  • D refused to testify before grand jury and was held in contempt, sentenced to a year in prison.

  • D argues attorney-client privilege; P claims it does not apply since D is not an attorney.

Opinion (Friendly):

• Contest between the need for finding truth and the need for confidential recourse to professional lawyers.

  • Policy of privilege doesn’t apply to other professionals, but now lawyers require staff to help them.

• The privilege covers communications to non-lawyer employees with a “menial or ministerial responsibility that involves relating communications to an attorney.”

  • There is no significant difference between these four cases:

    • (1) attorney sends client speaking foreign language to interpreter who makes a literal translation of the client’s story;

    • (2) attorney who himself has little knowledge of the foreign language enlists a knowledgeable non-lawyer employee in the room to help out;

    • (3) the client brings his own interpreter;

    • (4) attorney who doesn’t know language sends client to non-lawyer, with instructions for the non-lawyer to interview the client on lawyer’s behalf and render his own summary of the situation, even drawing on his own knowledge in the process so lawyer can give client proper legal advice.

  • These cases meet every element of Wigmore’s famous formulation, except for element 7 (since disclosure is not sought to be compelled from the client or the lawyer):

    • (1) Where legal advice of any kind is sought

    • (2) from a professional legal adviser in his capacity as such,

    • (3) the communications relating to that purpose,

    • (4) made in confidence

    • (5) by the client,

    • (6) are at his instance permanently protected

    • (7) from disclosure by himself or by the legal advisor,

    • (8) except if the protection is waived.

• If the lawyer has directed the client, either in the specific case or generally, to tell his story in the first instance to an accountant engaged by the lawyer, who is then to interpret it so that the lawyer may give better legal advice, communications by the client reasonably related to that purpose fall within the privilege.

  • What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from a lawyer.

  • If what is sought is only accounting service, not legal advice, or if the advice sought is the accountant’s rather than the lawyer’s, no privilege exists.

  • This draws a seemingly arbitrary, but necessary, line between a case where the client communicates first to his own accountant (no privilege, even though he later consults his lawyer on the same matter), and others where the client in the first instance consults a lawyer who retains an accountant as a listening post, or consults with the lawyer with his own accountant present.

• Vacated and remanded.

United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1979)

Facts:

• Ds—chairman of company, a state legislator, and a trustee of the city sanitation department—were convicted of wire fraud in bid-rigging scheme.

  • An unindicted co-conspirator who played a major role in the conspiracy testified for prosecution. W kept diaries which figured prominently in P’s case, since they corroborated much of his testimony.

• Investigator acting for D1’s counsel twice interviewed D2 with the consent of D2’s counsel for the purpose of determining whether there was a basis for challenging the truth of some of the diary entries.

  • In the second interview, D2 made several statements which D1 argues tend to support his defense.

  • At trial, when D1 offered evidence of these statements, D2’s counsel objected on the ground of attorney-client privilege and the court sustained the objection.

Opinion (Tone):

• D2 was entitled to the protection of attorney-client privilege because his statements were made in confidence to an attorney for a codefendant for a common purpose related to both defenses.

  • They were made in connection with the project of discrediting W, a project in which D1 and D2 and their attorneys were jointly engaged for the benefit of both defendants.

  • Common-defense rule: communications by a client to his own lawyer remain privileged when a lawyer subsequently shares them with co-defendants for the purposes of a common defense; nor is a waiver to be inferred from disclosure in confidence to a co-party’s attorney for a common purpose.

• Co-defendants’ defenses needn’t be in all respects compatible for a joint-defense privilege to be applicable.

  • The privilege protects pooling of information for any defense purpose common to the participating defendants.

• The investigator was an agent for D1’s attorney, and the privilege protects communications to the attorney’s agents for rendering his services.

• It doesn’t matter that D2 made the statement to D1’s attorney rather than to his own, since for the purposes of that joint effort the attorney for each represented both.

  • The attorney who undertakes to serve his client’s co-defendant for a limited purpose becomes the co-defendant’s attorney for that limited purpose.

Pasteris v. Robillard, 121 F.R.D 18 (D. Mass 1988)

Facts:

• P slipped and fell down D’s stairs. P sought discovery of D’s transcribed statement to his insurance company. D objected on grounds of attorney-client privilege.

Opinion (Alexander):

• Attorney-client privilege applies only if the person to whom the communication was made is a member of the bar of a court, or his subordinate, and in connection with this communication is acting as a lawyer.

• D do not contend the statement was made to an attorney. Therefore, for the privilege to apply, it must have been given to a subordinate of an attorney who was acting as a lawyer when the statement was made.

  • D states that P’s insurance policy requires company to defend him, requires insured cooperate with insurer, and so the statement was given by P to his insurer to assist insurer and the attorney it would retain to defend P.

  • Notwithstanding insurance company’s obligation to defend and P’s duty to cooperate, D have failed to show the person to whom the communication was made—presumably an employee of the insurance company—was actually a subordinate of an attorney or that the individual taking the statement was acting as an attorney.

  • Accordingly, the privilege does not apply.

Upjohn Co. v. United States, 449 U.S. 383 (1981)

Facts:

• D manufacturers and sells pharmaceuticals in US and abroad.

  • Independent accountants conducting audit of foreign subsidiaries discovered subsidiary made payments to foreign government officials in order to secure government business.

  • Accountants informed Thomas, D’s vice president and general counsel, who is a member of two state bars.

  • Thomas consulted with outside counsel and with the company’s chairman.

  • It was decided company would conduct internal investigation. As part of investigation, attorneys prepared a letter containing a questionnaire sent to foreign managers over the Chairman’s signature.

    • Letter noted companies made “possible illegal” payments and emphasized management needed full information. Letter indicated Chairman asked Thomas, identified as “the company’s General Counsel” to conduct investigation for the purpose of determining nature of payments. Managers instructed to keep investigation highly confidential. Responses were sent directly to Thomas.

    • Thomas and outside counsel also interviewed recipients of questionnaire and other company officers or employees as part of investigation.

• D voluntarily submitted report to Securities and Exchange Commission disclosing questionable payments. IRS then began investigation to determine tax consequences. Agents conducting investigation were given lists of all those employees who were interviewed and who answered questionnaire.

  • IRS issued summons demanding production of (1) all files relative to investigation conducted under supervision of Thomas; (2) including written questionnaires sent to managers, and memorandums or notes of interviews conducted with employees.

  • D declided to produce documents.

  • TC enforces summons; CoA found the privilege had not been waiver, but did not apply “to the extent communications were made by officers and agents not responsible for directing D’s actions in response to legal advice, for the simple reasons that the communications were not the ‘client’s’.” CoA also held the work-product doctrine is not applicable to administrative summonses issued by IRS.

Opinion (Rehnquist):

• ...

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