Attorney-Client Privilege in Civil Litigation : Protecting and Defending Confidentiality

by Walkowiak, Vincent S.

• ISBN13: 9781590313947
• ISBN10: 1590313941
• Edition: 3rd
• Format: Paperback
• Copyright: 2005-07-30
• Publisher: Natl Book Network
• More Book Details
• Purchase Benefits

Summary

This edition has been substantially updated, revised and expanded wih new chapters, including Sarbanes-Oxley Act of 2002, confidentiality/communications and ethical problems. This guide addresses the problems faced when representing corporate and other clients in civil litigation.

Table of Contents

Preface	xv
About the Editor	xvii
About the Authors	xix
Table of Cases	xxv
An Overview of the Attorney-Client Privilege When the Client Is a Corporation	1	(30)
Vincent S. Walkowiak
The Attorney-Client Privilege: First Principles	2	(21)
Establishing the Privilege	3	(1)
Determining the Rule of Privilege: Control Group v. Subject Matter	4	(3)
Conflict of Laws---Application of the Proper Test	7	(1)
In-House Attorney as Executive	8	(3)
In-House Counsel as a Witness	11	(1)
The Shelton Doctrine: Noticing the Opposing Counsel's Deposition	11	(2)
The ``Joint Defense'' Scenario	13	(1)
Self-Critical Analysis Privilege	14	(2)
Losing the Privilege: From Brinksmanship to Outright Disaster	16	(1)
Failing to Consistently Assert the Privilege	16	(1)
The Selected Disclosure Problem	16	(1)
Waiver	17	(1)
Waiver by Inadvertent Disclosure	17	(2)
Offensive Use of the Privilege	19	(1)
The ``Good Cause'' Exception	19	(1)
Distinguishing the Attorney Work-Product Doctrine from the Attorney-Client Privilege	20	(1)
The Attorney-Work Product Doctrine	20	(1)
Limits of the Work-Product Doctrine	21	(1)
Asserting the Work-Product Privilege in Successive Litigation	22	(1)
Conclusion	23	(8)
Confidentiality and Its Relationship to the Attorney-Client Privilege	31	(12)
Arthur Garwin
Introduction	31	(1)
Information versus Communication	32	(1)
Model Rule 1.6---Confidentiality of Information	32	(11)
Public Information	33	(1)
Paragraph (a) Impliedly Authorized Disclosures	34	(1)
Authorized Disclosures	35	(1)
Paragraph (b) Exceptions	35	(1)
Physical Harm	35	(1)
Crime-Fraud Exception	36	(1)
Ethics Advice	37	(1)
Claim or Defense	38	(1)
Other Law or Court Order	38	(1)
Other Laws	39	(1)
Court Orders	39	(4)
The Attorney-Client Privilege and the Sarbanes-Oxley Act of 2002	43	(14)
Harva R. Dockery
The Adopted Attorney Conduct Rules	44	(2)
Basic Premises	44	(1)
Reporting Up Requirements	44	(1)
Enforcement	45	(1)
Attorney-Client Privilege Issues Raised by the Adopted Rules	46	(2)
The Proposed Reporting Out Rules	48	(1)
The First Proposed Rule	48	(1)
The Second Proposed Rule	49	(1)
Attorney-Client Privilege Issues Raised by the Proposed Reporting Out Rules	49	(8)
The Attorney-Client Privilege and Corporate Communications: What's Still Confidential?	57	(18)
Michael A. Knoerzer
Eileen C. Kennelly
Introduction	57	(1)
The Attorney-Client Privilege Generally	58	(6)
Application of the Attorney-Client Privilege to Corporations	58	(1)
The Asserted Holder of the Privilege Is, or Sought to Become, a Client	59	(1)
The Person to Whom the Communication Is Made Is a Member of the Bar of a Court or the Bar Member's Subordinate	59	(1)
The Attorney-Client Privilege Protects Communications, Not Facts	60	(1)
The Communication Must Be Confidential	60	(1)
The Touchstone for the Privilege: Legal Advice	61	(1)
SR Int'l Business Ins. Co. Ltd. v. World Trade Center Properties LLC	62	(2)
Electronic Data Systems Corporation v. Steingraber	64	(1)
Miscellaneous Conduct by In-House Counsel	64	(1)
Contract Negotiations by In-House Counsel	65	(1)
The Impact of New Reporting Requirements upon the Attorney-Client Privilege	66	(3)
The Sarbanes-Oxley Act	66	(2)
The American Bar Association's Model Rules	68	(1)
Conclusion	69	(6)
Communications Between Related Corporations and the Attorney-Client Privilege	75	(16)
Vincent S. Walkowiak
Direct Communications Between a Parent Corporation and Its Subsidiary	75	(1)
The Common Ownership Test	76	(1)
The ``Community of Interest'' Test	76	(3)
The ``Joint Defense'' Test	79	(2)
Privilege Denied	81	(1)
The Work-Product Doctrine as It Applies to Communications Between Related Corporations	81	(5)
Conclusion	86	(5)
Privilege of Manufacturer Product Safety Quality Assurance Reviews	91	(14)
Rosewell Page III
Introduction	91	(1)
Attorney-Client Privilege	92	(4)
Communication	92	(1)
Client	93	(1)
Lawyer Consulted as Lawyer	94	(1)
Legal Advice	95	(1)
Confidentiality	96	(1)
Critical Self-Evaluation Privilege	96	(5)
Development	97	(1)
Civil Rights Litigation	97	(1)
Safety Evaluations	98	(2)
Establishing the Self-Evaluative Privilege	100	(1)
Policy of the Self-Evaluative Privilege	100	(1)
Application of the Privilege on Documents Prepared for the Government	101	(1)
Recent Developments---A Discouraging Trend	101	(1)
Conclusion	101	(4)
Communications Between Attorneys and Putative Class Members	105	(22)
Allan Kanner
Tibor Nagy
Introduction	105	(1)
Communications with Non-Clients Generally	106	(4)
Rules Against Solicitation, Contact with Represented Parties, and Misleading Statements	106	(1)
The Traditional Model: No-Comment Local Rules	107	(2)
The Modern Model: Case Management	109	(1)
Communications with Putative Class Members	110	(8)
Pre-certification	110	(1)
Jackson v. Motel 6 Multipurpose, Inc. and Abdallah v. Coca-Cola Company	111	(2)
Hammond v. City of Junction City	113	(1)
The Opt-Out Period	114	(1)
Kleiner v. First National Bank of Atlanta	114	(2)
Georgine v. Amchem Products, Inc.	116	(2)
Post-Certification, Post-Opt-Out Period	118	(1)
The Role of Class Members' Organizations	118	(1)
Opt-In Class Actions	119	(3)
Conclusion	122	(5)
The Application of the Attorney-Client Privilege and the Work-Product Doctrine to Communications Between Insureds and Insurance Carriers	127	(22)
Kirk A. Pasich
Introduction	127	(2)
Application of the Attorney-Client Privilege	129	(6)
The Majority View	129	(3)
The Minority View	132	(1)
Witness Interviews by Carriers or Their Counsel	133	(1)
The Impact of a Carrier's Reservation of Rights or Declination on the Applicability of the Attorney-Client Privilege	134	(1)
Application of the Work-Product Doctrine	135	(3)
The Majority View: Information in an Insurance Carrier's Claim Files Is Collected in the Ordinary Course of Business	136	(1)
The Minority View: Information in an Insurance Carrier's Claim File Is Collected in Anticipation of Litigation	137	(1)
The California View	138	(1)
The Application of the Work-Product Doctrine to Defense Materials	138	(1)
The Limited Protection View	138	(1)
The Broad Protection View	139	(1)
The Intermediate View	139	(3)
Waiver of the Work-Product Doctrine	139	(1)
Waiver Under Federal Law	139	(1)
Waiver Under California Law	140	(1)
Safeguards an Insured May Employ to Protect the Attorney-Client Privilege and the Work-Product Doctrine	141	(1)
Conclusion	142	(7)
A Second Look at Privilege and Confidentiality in the Reinsurance Arena	149	(68)
John W. Thornton
Jane Thornton Mastrucci
Cynthia Harrison Ruiz
Litigation, Reinsurance Policies, and the New Millennium	149	(8)
Reinsurance: A Brief Primer	149	(1)
``Follow the Fortunes'' Clauses in General	150	(2)
Recent Developments in Reinsurance and ``Follow the Fortunes'' Case Law	152	(1)
The Duty of ``Utmost Good Faith''	152	(1)
Recent Example Involving Reinsurance Scenario and Duty of Good Faith	153	(2)
How Discovery, Privilege, and Confidentiality Relate to Reinsurance	155	(2)
Discovery of Reinsurance Information by Policyholder in Action Against the Insurance Company	157	(6)
Discoverability of the Reinsurance Policy Itself	157	(1)
Broader Discovery of Other Reinsurance Information	158	(1)
Responding to a Third-Party Subpoena for Reinsurance Documents Under Rule 45 of the Federal Rules of Civil Procedure	159	(1)
Attorney-Client Privilege and the ``Common Interest'' Rule as Applies to Subpoenas	160	(1)
Additional Privilege Issues That Arise in Reinsurance Litigation Situations	160	(3)
Privilege and Confidentiality in Disputes Between the Ceding Company and the Reinsurer	163	(4)
Reinsurer's Defense of Late Notice of Claim: Actual Prejudice versus Bad Faith	163	(2)
``Common Interest Rule'' as Arises in Litigation Between Reinsurer and Ceding Company	165	(2)
Other Major Issues Involving Privilege and Confidentiality That Arise in Reinsurance Scenarios	167	(14)
Arbitration, Privilege, and Reinsurance	167	(2)
The Impact of Rule 408 of the Federal Rules of Evidence	169	(1)
Ethical Considerations in Connection with Privilege and Confidentiality	169	(1)
Communication with Person Represented by Counsel	170	(7)
Fairness to Opposing Party and Counsel	177	(2)
Dealing with an Unrepresented Person	179	(1)
Respect for Rights of Third Persons	180	(1)
Listing of Related Topics and Supplemental Authority	181	(4)
In Continental Casualty Co. v. United States Fidelity & Guaranty Co., 204 U.S.	183	(2)
General Background: Statutory and Common-Law Privileges and Confidentialities	185	(32)
Attorney-Client and Work-Product Doctrines in Environmental Coverage Litigation	217	(6)
Margaret E. Wetherald
Deborah Dowd
Common Interest Exception to Attorney-Client Privilege and Work-Product Doctrine	220	(1)
``At Issue'' Exception	220	(1)
Cooperation Clause	221	(2)
Preserving the Confidentiality of Investigations by In-House and Outside Counsel	223	(22)
Aimee B. Anderson
Introduction	223	(1)
Application of the Privilege to the Corporate Client	224	(3)
The Scope of the Privilege Before Upjohn v. United States: The Control Group Test	224	(1)
Upjohn v. United States: The Supreme Court Rejects the Control Group Test	225	(1)
The Scope of the Privilege after Upjohn: The Subject Matter Test	226	(1)
In-House and Outside Counsel and the Distinction Between Legal and Business Advice	227	(5)
Dual Representation of the Corporation and the Employee	229	(1)
Communications with Former Employees During the Course of the Investigation	230	(1)
Communication Between Corporate Counsel and Contract Employees	230	(1)
Attorney-Client Privilege in the Parent/Subsidiary Relationship	231	(1)
Communications with Non-Lawyers Acting at the Direction of Lawyers	232	(1)
Exceptions to the Attorney-Client Privilege	232	(3)
The Fiduciary Exception	232	(1)
The Crime-Fraud Exception	232	(1)
The ``At-Issue'' Exception	233	(1)
The Public Policy Exception	233	(1)
Waiver of the Attorney-Client Privilege	233	(2)
The Work-Product Doctrine in the Corporate Client Context	235	(2)
The Distinction Between the Attorney-Client Privilege and the Work-Product Doctrine	235	(1)
The Application of the Work-Product Doctrine	236	(1)
Materials Obtained or Prepared ``In Anticipation of Litigation''	237	(1)
Work-Product Protection in Subsequent Litigation	237	(1)
Conclusion	237	(8)
Applying the Attorney-Client Privilege to Investigations Involving Attorneys: What Is Fair Game in Discovery?	245	(38)
David E. Bland
Scott G. Johnson
Elisabeth M. Will
Introduction	245	(1)
The Attorney-Client Privilege Defined	246	(1)
Is the Attorney Investigator Acting as an Attorney?	247	(5)
Attorney Investigator Acting in Capacity of Attorney	247	(2)
Attorney Investigator Not Acting in Capacity of Attorney	249	(3)
Summary	252	(1)
Special Problems Facing Corporations That Retain Counsel to Investigate	253	(4)
Supreme Court Rejects Control Group Test	253	(1)
The Control Group Theory Remains Viable	254	(1)
Arizona Adopts a Third Approach	255	(1)
Summary	256	(1)
Information from Non-Clients: Is It Protected?	257	(3)
Application of the Attorney-Client Privilege	257	(2)
Are Former Employees Clients or Third Parties?	259	(1)
What Must Be Disclosed?	260	(1)
Additional Attorney-Client Privilege Issues	260	(3)
Who Is the Client?	260	(1)
When Is the Client a Client?	261	(1)
Has the Privilege Been Waived?	262	(1)
Work-Product Issues	263	(4)
In Anticipation of Litigation	264	(2)
Substantial Need	266	(1)
Conclusion	267	(16)
Conflict Between the Permissive Scope of Fact Witness Investigation and Protection of Attorney-Client Communication	283	(20)
Vincent S. Walkowiak
Definition of the Problem	283	(2)
Current Employees	285	(1)
Former Employees	286	(4)
The Attorney-Client Privilege Affords the Most Effective Protection Against Exploitation of a Turncoat Former Employee	290	(1)
Creation of Attorney-Client Relationships	291	(1)
Strategies to Prevent Access to Key People and Access to Information	291	(5)
Identify Key People	291	(1)
Confidentiality Agreements	292	(1)
Enjoin the Former Employee	292	(2)
Quashing Third-Party Subpoenas	294	(1)
Trial Strategies	294	(1)
Move to Disqualify	294	(1)
Sizing Up the Hostile Ex-Employee Witness	295	(1)
The Former Witness at Trial	296	(1)
Conclusion	296	(7)
Discovery of the In-House Expert Assigned to Litigation	303	(10)
Joseph C. Kearfott
Introduction	303	(1)
Protecting the Non-Testifying In-House Expert's Work from Discovery	304	(1)
The Three Views	304	(3)
Total Protection	304	(1)
No Protection	305	(1)
Some Protection	306	(1)
Caveats / Limits on Protection	307	(1)
Suggestions to Minimize Risk of Discovery	308	(1)
Conclusion	309	(4)
Loss of Attorney-Client Privilege Through Inadvertent Disclosure of Privileged Documents	313	(18)
Vincent S. Walkowiak
Sarah E. Lemons
Prof. Thomas J. Leach
Introduction	313	(2)
Attorney-Client Privilege and Waiver	315	(1)
The Strict Approach: Privilege Automatically Lost by Disclosure	316	(2)
The Lenient Approach: Client's Subjective Intent to Waive	318	(1)
The Middle Ground: Evaluation of the Circumstances Test	319	(2)
How to Protect the Privilege---Avoiding Production and Retrieving Privileged Materials	321	(10)
Putting Attorneys on the Witness Stand and Their Advice at Issue: The Perils of Selective Waiver of Privilege	331	(22)
Alan J. Martin
Demetrios G. Metropoulos
Veronica L. Spicer
Introduction	331	(1)
The Attorney as Witness	332	(6)
Handgards	333	(1)
Underlying Considerations	333	(1)
Work-Product Immunity	333	(1)
The Attorney as an Expert Witness	334	(1)
Pretrial Procedure	335	(1)
Northbrook v. Procter & Gamble	336	(2)
Putting the Advice of Counsel at Issue	338	(9)
Criminal Cases	338	(1)
Civil Cases: The General Rule	338	(1)
Hearn and Progeny---the State of Mind Exception	339	(1)
Hearn and the Qualified Immunity Defense	339	(1)
The ``Good Faith'' Defense	340	(1)
Equitable Estoppel	341	(1)
Fraud	342	(1)
Contractual Intent	343	(1)
Beyond ``State of Mind''	343	(1)
Further Extensions of the Implied Waiver Doctrine	344	(1)
Refusal of Advice-of-Counsel Defense	344	(1)
Pleading by Opponent	345	(1)
The Scope of an Implied Privilege Waiver	345	(2)
Conclusion	347	(6)
Preserving Candor: The Hidden Danger from ``Exceptions'' to the Attorney-Client Privilege	353	(18)
Kenneth A. Hindman
Steven A. Wagner
What Lawyers and Clients Understand About the Attorney-Client Privilege	353	(1)
The Unspoken Understanding Between Lawyers and Clients	354	(1)
Substantive Law	355	(1)
Procedural and Process Considerations	355	(2)
How Restricting the Scope of the Privilege Expands Exceptions to the Privilege	357	(6)
Exception for ``Non-Legal'' Work	357	(2)
``Bad Faith''/``At Issue'' Exception	359	(2)
The ``Crime-Fraud'' Exception	361	(2)
Why the Courts Are Not the Answer	363	(1)
Why Litigation-Based Rules Should Not Define the Privilege	364	(1)
Conclusion	365	(6)
The Self-Defense Exception to the Attorney's Ethical Obligation to Maintain Client Confidences	371	(12)
Michael F. Pezzulli
Rule 1.6 of the ABA Model Rules of Professional Conduct	371	(3)
The Self-Defense Exception	374	(1)
Illustrative Cases	375	(8)
Perspectives on the Attorney-Client Privilege and the Work-Product Doctrine	383	(22)
Allan Kanner
Tibor Nagy
Introduction	383	(1)
The Attorney-Client Privilege and the Work-Product Doctrine	383	(4)
The Attorney-Client Privilege	384	(1)
The Work-Product Doctrine	385	(2)
The Evolving Role of Corporate Counsel	387	(5)
The Changing Role of In-House Counsel	387	(2)
The Use of Outside Counsel in Internal Investigations	389	(1)
Changing Conceptions of Secrecy	390	(2)
The Crime-Fraud Exception	392	(5)
Origin and Purpose	392	(1)
Scope of the Exception	392	(1)
Evidentiary Standards	393	(2)
Building a Crime-Fraud Exception Argument in Mass Disaster Cases	395	(2)
Communications with Former Employees	397	(3)
Conclusion	400	(5)
The Joint Defense Privilege: An Illusion or a Magic Wand?	405	(16)
Jeffery J. Carlson
Introduction	405	(1)
Basic Overview of the Attorney-Client and Work-Product Privileges	406	(1)
Attorney-Client Privilege	406	(1)
Work-Product Privilege	406	(1)
The Applicability of the Attorney-Client Privilege and the Work-Product Privilege in the Context of a Joint Defense Arrangement	407	(7)
Attorney-Client Privilege	407	(2)
Work-Product Privilege	409	(1)
Waiver	409	(1)
Attorney-Client Privilege	410	(1)
Work-Product Privilege	411	(2)
The Use of a Confidential Clause as a Precautionary Measure	413	(1)
The Crime-Fraud Exception	413	(1)
Issues Concerning Insurance Coverage Groups	414	(3)
The Privileged Nature of Communications Shared with Insurer	414	(3)
Privileges Afforded Plaintiffs in Joint Prosecution Against Insurer	417	(1)
Conclusion	417	(4)
Duties of Emergency Disclosure to the Government Under CERCLA, EPCRA, and the Clean Air Act	421	(20)
Neal A. Huseske
Brien J. Flanagan
Introduction	421	(1)
Notifying Government Agencies	422	(3)
Notification Requirements Under CERCLA and EPCRA	422	(1)
What Is a Reportable Release?	423	(1)
What Is a Hazardous Substance?	423	(1)
At What Volume Does a Release Become Reportable?	423	(1)
What to Report	423	(1)
Exemptions from Notification	424	(1)
Federally Permitted Releases	424	(1)
Continuous Releases	424	(1)
Normal Application of Fertilizers and Pesticides	425	(1)
Releases to the Workplace	425	(1)
EPA Investigations and Inspections Under CERCLA	425	(2)
EPA Investigations, Monitoring, and Testing	425	(1)
EPA Inspection and Requests to Produce Information	426	(1)
Reporting Requirements Under EPCRA	427	(2)
Material Safety Data Sheets	427	(1)
Emergency and Hazardous Chemical Inventory Forms	427	(1)
Toxic Chemical Release Reports	428	(1)
Reporting Requirements Under the Clean Air Act	429	(1)
Protection from Disclosure as a Result of Voluntary Audit Privilege	430	(1)
EPA Disclosure of Information to the Public	431	(5)
Public Access to Information Under FOIA	432	(1)
Disclosure of Information by the EPA Under FOIA	432	(1)
Information Exempted by Statute	433	(1)
Trade Secrets	434	(1)
Investigatory Records	434	(1)
Trade Secret Protection Under EPCRA	435	(1)
Enforcement and Citizens' Suits	436	(1)
Conclusion	436	(5)
Beyond the Labor and Employment Lawyer's Looking Glass: Who Is My Client?	441	(12)
Jeffrey S. Goldman
Philip F. Ackerman
Introduction	441	(1)
Background of the Attorney-Client Privilege	442	(1)
The Attorney-Client Privilege in Federal Courts	443	(2)
The Attorney-Client Privilege in State Courts	445	(2)
California	446	(1)
Illinois	446	(1)
Texas	447	(1)
Florida	447	(1)
New York	447	(1)
The Special Problem of Client Identity in ERISA Cases	447	(3)
Waiver	448	(2)
Procedures to Maximize Protection of the Confidentiality of Communications	450	(1)
Conclusion	451	(2)
Index	453