United States
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Legal professional privilege in the US is embodied in rules of professional conduct for lawyers (lawyer-client confidentiality) and rules of evidence and procedure applicable in the courts (the attorney-client legal professional privilege and the work product doctrine).
While the American Bar Association has promulgated the Model Rules of Professional Conduct ('Model Rules'), each of the 50 states in the US has jurisdiction over the lawyers practising in that state and may have adopted rules with slight variations from the Model Rules. In addition, while there are Federal Rules of Evidence and Federal Rules of Civil Procedure applicable in federal courts throughout the US, each state has its own rules of evidence and procedure which may vary from their federal counterparts. This summary is based upon the Model Rules and the Federal Rules of Evidence and Civil Procedure, except with respect to the discussion of legal professional privilege as it applies to non-national lawyers set forth below.
Ethical duties in the US relating to attorney-client privilege and lawyer-client confidentiality have their roots in early English law. Their concepts are now embodied in Model Rule 1.6. Under the Federal Rules of Evidence, Rule 501, federal common law governs the attorney-client legal professional privilege and the work product doctrine unless the US Constitution, federal statutes or court rules provide otherwise. Legal professional privilege applies to civil matters, criminal matters and antitrust enforcement.
The following three areas of law embody the scope of legal professional privilege:
Under Rule 1.6 of the Model Rules, confidentiality is a fundamental principle in the relationship between a lawyer and client whereby, in the absence of client consent or other applicable exceptions (described below), the lawyer may not reveal information relating to client representation. Confidentiality may apply whether or not the source of the information was the client. Therefore, communication with representatives of the client, or between the lawyer and persons retained by them, may also be protected by the privilege. For example, if a lawyer engages a consultant or expert to assist in preparation for litigation on behalf of a client, the communication of the consultant to the lawyer can also be privileged. This rule is meant to establish a relationship of trust between the lawyer and the client; it encourages the client to seek legal assistance and to communicate fully and frankly.
Under Rule 1.0(e), in order for the client to give informed consent to waive the privilege, the lawyer must communicate adequate information to the client about the material risks of and reasonable alternatives to waiving confidentiality. Unless confidential information otherwise becomes general knowledge, it remains confidential throughout the entirety of representation and thereafter.
Rule 1.6(b) enumerates exceptions to the rule of confidentiality, which are more likely to arise in criminal matters and in antitrust enforcement. A lawyer may reveal information relating to the representation of a client to the extent the lawyer believes necessary to:
The attorney-client privilege is an evidentiary rule that protects confidential communication between clients and their lawyers made in furtherance of obtaining legal services. It applies specifically to judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The attorney-client privilege is distinguishable from the rule of confidentiality because it only applies to confidential communication between the lawyer and the client, and not all confidential information provided by the client. Communication between lawyers and clients is often marked 'lawyer-client' privilege to readily distinguish such communication, although such labelling is not mandatory for the privilege to be applicable.
Some courts have found that the attorney-client privilege may be lost if the attorney or the client discloses privileged communication, even if disclosure was inadvertent.
The work product doctrine protects from discovery by opposing counsel material that an attorney (or the client, at the direction of an attorney) has prepared in anticipation of litigation. There are two types of work products – opinion work product and ordinary work product. Opinion work product includes an attorney's mental impressions, attorney notes and documents reflecting strategies. Ordinary work product includes factual information separate and apart from legal analysis, such as transcripts of witness interviews, reports of non-testifying experts and financial records from the client. Courts tend to give greater protection to opinion work product. Under Rule 26 of the Federal Rules of Civil Procedure, an opposing party in litigation may get access to lawyer work product if it can show that it 'has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means'.
Courts have taken two approaches to legal professional privilege between in-house counsel and corporate employees. Some courts have adopted the 'control group test', which limits privilege to communication between in-house counsel and corporate employees who have authority to control or participate in the corporation's legal affairs. Under this approach, communication from individuals outside the control group is not protected. Other courts have adopted the 'subject matter test', which limits privilege to communication from corporate employees for the specific purpose of securing legal advice for the corporation. Communication with in-house counsel that relates to business as opposed to legal advice will likely not be protected by privilege.
In the seminal case of Upjohn v. United States, the US Supreme Court found that, for purposes of federal law, communication was privileged when it was for the specific purpose of securing legal advice for the corporation and was within the scope of the communicating employee's corporate duties (449 U.S. 383, 394 (1981)). In Upjohn, communication from lower level employees to general counsel in the form of a confidential questionnaire to learn the extent of any illegal payments was considered to be privileged information.
Some corporations choose to waive the attorney-client privilege when they are under pressure from the government to do so during a criminal investigation. This has been the topic of much debate, and the US Department of Justice has altered its policies to reduce the pressure on corporations to waive the privilege.
Perhaps under such circumstances, US courts apply a choice-of-law analysis to determine whether domestic or foreign law governs the question of privilege. Otherwise, the court will apply the relevant foreign legal professional privilege law. Federal and state courts take different approaches to the choice-of-law analysis.
In federal courts, under Section 501 of the Federal Rules of Evidence, federal common law governs the attorney-client privilege to give courts the flexibility to develop rules governing legal professional privilege on a case-by-case basis. If the federal court finds that domestic law should apply, then the US concept of the attorney-client privilege protects correspondence with non-national qualified lawyers.
Most federal courts apply the 'touch base' approach when determining whether correspondence with non-national qualified lawyers is privileged. Under this fact-specific analysis, 'any communications touching base with the United States will be governed by the federal discovery rules', including the attorney-client privilege (Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1169 (D.S.C. 1974)). The Southern District of New York recently applied the 'touch base' approach in a trademark infringement case, and found that even communication between a US client and a non-national agent of a non-national lawyer was privileged under US law (Gucci America, Inc. v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 23 September 2010)).
At the state court level, courts tend to follow one of two approaches when determining whether correspondence with non-national qualified lawyers is privileged. A minority of the states (including Nevada, Connecticut and Virginia) apply the 'territorial approach' under which courts apply the legal professional privilege laws of the forum state. On the other hand, most states (including California, Delaware, Florida, Illinois, Maryland, New York and Texas) apply the 'most significant relationship' test, under which courts apply the legal professional privilege laws of the jurisdiction that has the 'most significant relationship' with the communication, unless admission would be contrary to public policy. Accordingly, if the 'most significant relationship' with the communication is determined to be a foreign jurisdiction, and if such jurisdiction would not protect such communication (eg because the lawyer was an in-house counsel), the law of the foreign jurisdiction will govern.
A few states that apply the 'most significant relationship' test, including California, Delaware, Florida and Texas, have broadly defined 'lawyer' to include all licensed lawyers so that legal professional privilege extends to correspondence with non-national qualified lawyers. In these states, if the state court finds that its own jurisdiction has the 'most significant relationship' with the communication in question, it is clear that the attorney-client privilege applies, no matter the nationality of the licensed lawyer.
In other states, if the court determines that its own laws apply, either based upon the 'territorial approach' or the 'most significant relationship' test, the determination to protect correspondence with a non-national lawyer will depend on that individual state's laws and the results may vary.
Unless care is taken, there are a number of situations where the lawyer-client privilege may be held not to apply or will be considered waived. Examples of how this may occur include:
The attorney-client privilege and work product doctrine both apply in the context of merger control proceedings. In the event that the government demands documents from a party to a transaction, that party may redact or refuse to produce privileged documents. If a party chooses to rely on privilege as the basis for withholding or redacting documents, it must produce a ‘privilege log’, which describes the relevant documents in sufficient detail to demonstrate that a privilege applies (usually by identifying the document title, the name and position of its author, and a brief description of its content). If the government disagrees that a document described in a log is privileged, they may petition a court to order the production of that document.
In June 2014, the United States Court of Appeals for the District of Columbia Circuit ('DC Circuit'), in the case of In re Kellogg Brown and Root, 756 F.3d 754 (D.C. Cir. 2014), strengthened the application of the lawyer-client privilege in situations in which in-house counsel is leading a company's internal investigation. The trial court had held that the privilege did not apply when an investigation is being conducted to determine whether the company was complying with government regulations that require companies to maintain compliance programmes or respond to allegations of wrongdoing. The lower court concluded that in-house counsel did not have the same privilege protections as retained outside counsel and that was particularly so when the internal investigation involved communications with non-lawyers who were working under the direction of the in-house lawyers. The DC Circuit reversed the decision and concluded that:
In 2018, the DC Circuit also clarified the proper application of the so-called 'primary purpose test,' which provides that a communication between an attorney and client is privileged if its primary purpose is to seek or provide legal advice. Application of this test can become complicated when the client and attorney discuss both legal and business issues in the course of their communication. In FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 892 F.3d 1264 (D.C. Cir 2018), the DC Circuit explained that a communication with both legal and business purposes will be privileged so long as 'obtaining or providing legal advice was one of the significant purposes of the communications at issue.' Id. at 1268.
The attorney-client privilege also protects communication with prospective clients and former clients. Under Rule 1.18, communication between a lawyer and a prospective client who does not retain the lawyer's services remains privileged. In these situations, lawyers should limit the information obtained during a preliminary interview to the information necessary to screen for conflicts. Under Rule 1.9, communication between a lawyer and a former client – arguably even one who is deceased – also remains privileged. The question of whether the legal professional privilege should survive a client's death is a debatable one. On the one hand, disclosure will not place the client in jeopardy; on the other hand, disclosure may call into question the former client's character.
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