Legal professional privilege in the U.S. is regulated by the laws of professional conduct of attorneys (attorney-client confidentiality) and the rules of professional conduct of attorneys.
Although the American Bar Association has implemented the Standard Rules of Professional Conduct (‘Model Rules’), each of the 50 States in the United States has authority over attorneys practicing in that State and may have introduced rules with minor differences from the Model Rules. In addition, although the Federal Rules of Evidence and the Federal Rules of Civil Procedure apply to federal courts throughout the United States, each State has its own rules of evidence and procedures which may differ from those of its federal counterparts. This description is based on the Model Rules and the Federal Rules of Proof and Civil Procedure, with the exception of the discussion of legal professional privilege as it relates to non-national attorneys set out below.
Ethical obligations in the United States relating to the privilege of the attorney-client and the confidentiality of the attorney-client are embedded in early English law. They are now embodied in Model Rule 1.6. Under the Federal Rules of Proof, Rule 501 of the Federal Common Law regulates the professional right of an attorney-client and the doctrine of work product, unless otherwise established by the US Constitution, federal laws or court rules. Legal professional immunity extends to civil, criminal and anti-trust matters.
What is being covered by legal professional privilege?
The following three fields of law fall within the framework of legal professional privilege:
Pursuant to Rule 1.6 of the Model Rules, confidentiality is a basic principle in the relationship between an attorney and a client whereby, in the absence of the agreement of the client or other relevant exceptions (described below), the attorney does not disclose details relating to the representation of the client. Confidentiality may apply whether or not the client was the source of the information. Communication with the client’s representatives, or between the attorney and the individuals retained by the client, can also therefore be protected by privilege. For example, if an attorney employs a consultant or an expert to assist in the planning of a dispute on behalf of a client, the contact of the consultant to the attorney might also be privileged. This rule is intended to create a relationship of trust between the attorney and the client; it allows the client to obtain legal assistance and to interact thoroughly and honestly. Pursuant to Rule 1.0(e), in order for the client to provide informed consent to waive the right, the attorney must provide the client with sufficient details on the material risks and fair alternatives to waiving confidentiality. Until otherwise revealed classified information becomes public knowledge, it remains confidential throughout the entire representation and afterwards.
Rule 1.6(b) sets out exceptions to the rule of secrecy that are more likely to occur in criminal and antitrust matters. An attorney may disclose information relating to the representation of a client to the degree that the attorney considers it necessary to:
– Prevent fairly assured death or serious bodily harm
– Prevent a client from committing a crime or fraud that is fairly likely to result in significant harm to the financial interests or property of another client and to the advantage of which the client has used or uses the services of a attorney.
– Prevent, prevent or correct material damage to the financial interests or property of another person that is fairly likely to result from, or has resulted from, the commission by the client of a crime or fraud in support of which the client has used the services of the attorney.
– Create a claim or defense on behalf of an attorney in a dispute between an attorney and a client, establish a defense of a criminal or civil suit against an attorney on the grounds of the actions in which the client was involved, or respond to a complaint in any proceeding relating to the presentation of the client by an attorney, or comply with any other statute or court order.
Attorney-client privilege is a testamentary provision that covers confidential contact between clients and their attorneys in order to provide legal services. It refers, in particular, to judicial and other proceedings in which an attorney might be summoned as a witness or otherwise compelled to provide evidence involving a client. The right of the attorney-client is distinguishable from the confidentiality rule because it applies only to confidential contact between the attorney and the client, and not to all confidential information given by the client. Communication between attorneys and clients is often referred to as the ‘attorney-client’ privilege of easily identifying such communication, although such labeling is not necessary for the privilege to be applicable.
Some courts have found that the right of the attorney-client can be lost if the attorney or client discloses a confidential contact, even if the disclosure was inadvertent.
Work product doctrine protects against discovery by challenging counsel material that an attorney (or a client, under the guidance of a attorney) has prepared in preparation of litigation. There are two types of work products: the opinion work product and the ordinary work product. Opinion work product involves an attorney’s mental experiences, attorney’s notes, and strategy-reflecting papers. The ordinary work product contains separate and non-legal factual material, such as transcripts of witness interviews, reports of non-testing experts and financial records of the client. Courts prefer to offer a higher degree of protection to opinion work product. Pursuant to Rule 26 of the Federal Rules of Civil Procedure, an opposing party can have access to a attorney’s work product if it can prove that ‘it has a significant need for information to prepare its case and cannot, without unreasonable difficulty, acquire its substantial equivalent by any means.’
There are a variety of cases where the attorney-client privilege can be held not to extend or may be deemed waived unless caution is taken. Examples of how this could occur include:
– Communications include individuals not in the formal client class Sufficient measures have not been taken to ensure that communications, both written and oral, are made in confidence, and
– There are either deliberate or accidental privilege waivers (eg by unintentionally disclosing privileged materials in discovery or by voluntarily providing privileged information to the government during an investigation).
Both the right of the attorney-client and the doctrine of the work product shall apply in the case of merger control proceedings. In the event that the government requests documents from a party to the transaction, that party can rewrite or refuse to produce privileged documents. If a party wishes to rely on privilege as the reason for withholding or redacting records, it must create a ‘privilege log’ documenting the related documents in adequate detail to prove that the 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 with the right of a document mentioned in a log, it may ask the court to order the creation of that document.