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Table of Contents

I. Introduction 1

A. General rule of the privilege (Federal Rules) 1

1. Definitions 2

B. The California Evidence Code 2

II. Elements of the Privilege 2

A. Lawyer and Client 2

1. Representatives of the Client or Lawyer 3

2. Prospective Clients - Questionnaires 3

3. Entities 5

4. Anticipatory Communications from an Insured to an Insurer 8

5. Ex Parte Contact with Represented Parties or Persons 8

6. Federal Prosecutors and Ex Parte Contacts 12

7. The Privilege and Government Lawyers 12

B. Confidential Communications 13

1. Attorneys as Conduits or Messengers 13

2. Eavesdroppers 14

III. What the Privilege Does Not Cover 14

A. Details of the Attorney-Client Relationship 15

1. Fact of Employment or Meeting Dates 15

2. Fee Information 15

3. Client Identity and the Last Link Doctrine 15

4. Coaching Clients 16

B. Pre-existing Business Records and Personal Papers 16

1. Fifth Amendment Privilege against Self-Incrimination 16

2. Business Records 17

3. Personal Papers 18

4. Pre-existing Records, Physical Evidence, and the Fourth Amendment 19

C. Physical Evidence 19

Introduction

General rule of the privilege (Federal Rules)

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

1) between himself or his representative and his lawyer or his lawyer's representative,

2) between his lawyer and the lawyer's representative,

3) by him or his lawyer to a lawyer representing another in a matter of common interest,

4) between representatives of the client or between the client and a representative of the client,

5) between lawyers representing the client.

Definitions

▪ Client: a person or entity who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.

▪ Lawyer: a person authorized, or reasonably believed by the client to be authorized, to practice law.

▪ Representative of the lawyer: one employed to assist the lawyer in the rendition of professional legal services.

▪ Confidential communication: a communication that is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

The California Evidence Code

California’s privilege is the same as the Federal Rules.

There is a presumption that a communication made in confidence in the course of a lawyer-client relationship is protected by the privilege.

In California, the privileges (and their exceptions) contained in the Evidence Code are exclusive and the courts are not free to create new privileges as a matter of judicial policy – must be created statutorily.

Elements of the Privilege

Lawyer and Client

The attorney-client privilege applies to confidential communications between a lawyer and client.

A "lawyer" includes "any person reasonably believed by the client to be authorized to practice law." Thus, if the client talks with a paralegal, or with a person fraudulently claiming to be an attorney, the communication is protected.

A "client" is defines as "a person, or a person's authorized representative, who consults a lawyer for legal advice or seeks to retain the lawyer for professional legal services."

An entity is considered "a person" who may be a client.

Representatives of the Client or Lawyer

Communications between representatives of the client or the attorney are also protected by the attorney-client privilege, if the communications are made in confidence for the purpose of obtaining legal advice or legal services from the lawyer.

Public Relations Firms

Privilege applies

▪ If the PR firm is a representative of the client, then the privilege applies.

▪ If the PR firm is hired by the lawyer to assist him or her in giving legal advice or services, then the privilege applies.

▪ If the PR firm is hired to act as a consultant to a litigation team to assist in giving advice to the client, then the privilege generally applies.

- Does not apply if hired to assist litigation team in “marketing scheme” to the media

No privilege applies

▪ If the PR firm is hired by the client to assemble information to get legal advice, then the privilege does not applies.

▪ If the PR firm is hired by the client for PR assistance, then no privilege exists.

▪ If the PR firm is hired by the lawyer for purely PR work, then privilege does not apply.

Prospective Clients - Questionnaires

To what extent is a questionnaire filled out by potential clients discoverable?

▪ The test is whether the potential clients reasonably believed they were consulting a lawyer for legal advice or representation at the time they filled out the questionnaires.

▪ It is the client's reasonable belief that is controlling, not the lawyers.

The burden will be placed on the lawyer to show that the answers to the questionnaires were not intended to be confidential.

Even though a disclaimer might prevent the formation of an attorney-client relationship, a disclaimer that fails to state that confidence will not be kept, gives rise to an implied duty to refrain from disclosing the client's confidences without client consent.

o Vodak v. City of Chicago

- Mass arrest of demonstrators, a law firm distributed questionnaires to arrestees at a meeting, the purpose of which was to provide legal information and legal representation if desired. Only those who were seeking legal representation or specific advice were requested to complete questionnaire and the information was immediately used to file suits.

- The court held the forms to be confidential communications because of the reasonable belief of the clients that it would so be for the reasons stated above.

o Schiller v. City of New York

- Protestors were arrested and NYCLU, which represented the protestors, disseminated a questionnaire seeking information about the alleged police misconduct and was transmitted over e-mail, available online, and at its office.

- The introduction stated the “information you provide will help the NYCLU and other legal organizations document the police practices so we can advocate for change.” It also directed respondents to indicate whether the information was confidential.

- The court concluded the attorney-client privilege did not protect the questionnaires from discovery because (1) no attorney-client relationship was established by filling out the form, (2) the NYCLU offered no evidence that any person who completed a questionnaire believed he/she was seeking legal representation, (3) the form stated the information would be used by other legal organizations, (4) form dissemination not restricted to those seeking legal advice, and (5) the form did not state the responses would be considered confidential.

o Barton v. US District Court for Central District of CA

- Plaintiffs sustained injury from using a prescription drug and a law firm posted questionnaire on the internet, seeking information about the potential class members for a class action the firm contemplated.

- The form required the respondent to check a box acknowledging that the questionnaire “does not constitute a request for legal advice and that I am not forming an attorney client relationship by submitting this information.” Note, nothing about “confidentiality” appears. It is the client’s belief that controls – which is ambiguous here.

- The form states its purpose is to “gather information about potential class member,” not to consider accepting them as clients. BUT, gathering “information about potential class members” suggests the firm is trolling for clients.

- A statement on the questionnaire that it is intended to be “confidential” is not required to protect the questionnaire from disclosure. Furthermore, a disclaimer of an attorney-client relationship does not always act as a disclaimer of confidentiality.

- In California, a client’s communication to a lawyer is confidential if made “in the course of that relationship,” which by itself might seem to omply that communications prior to establish of the relationship would be be privileiged. But the phrase does not mean that the lawyer has to take the person on as a client before the privilege applies, because the client is defined to mean a person who consults a lawyer for the purposes of “retaining the lawyer,” “securing legal services,” or securing “advice.” All three can precede the lawyer’s acceptance of the client.

- The court held there was sufficient evidence to conclude the clients reasonably believed they were submitting confidential information and potentially obtaining legal services or advice.

Entities

o Upjohn v. United States (US Supreme Court)

- An auditing of Upjohn’s foreign subsidiaries revealed a potential for payments made to government officials to secure government business. Thomas, Upjohn’s VP and General Counsel, was informed and he consulted outside counsel and the Chairman of the Board.

- An internal investigation was conducted and a questionnaire, prepared by the attorneys, was sent to all managers. The questionnaire sought detailed information concerning such payments. Managers were instructed to treat the investigation as “highly confidential” and not to discuss it with anyone other than Upjohn employees with might be helpful in providing the information with responses to be sent directly to Thomas.

- The questionnaire was held to be confidential because the communications were made by Upjohn employees to counsel for Upjohn at the direction of corporate superiors in order to secure legal advice from counsel.

- The communications concerned matters within the scope of the employees’ corporate duties, and the employees were sufficiently aware that they were being questioned in order to the corporation to obtain legal advice and that the communications were to be kept highly confidential.

The attorney-client privilege exists to protect communications between a corporation's lawyer and employees outside the "control group" - officers and agents who are responsible for directing the company's actions in response to legal advice - when the communications are made (1) by the company's employees to company's counsel, acting as an employee, (2) at the direction of corporate superiors, (3) in order to secure legal advice from counsel.

Federal Circuit Courts have upheld the attorney-client privilege of a partnership by applying Upjohn to a person, who although not an employee of the partnership, was an independent consultant, using the same factors as above.

When Upjohn would not apply

The Upjohn privilege would not apply (1) where either an attorney questions former employees, or (2) where an employee voluntarily provides the attorney with information without being requested by an Entity officer to do so.

The Supreme Court in Upjohn also made clear that the privilege does not shield discovery of the underlying facts. The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.

o United States v. Rowe (US Court of Appeals – 9th Circuit)

- Wrinkle in Upjohn as here a law firm is investigating itself. Two associates were assigned to investigate the improper handling of clients’ funds by an associate; the associates were effectively in-house counsel. Several months later the investigation was turned over to outside counsel, who then directed the two associates.

- It is clear that the associates’ communications with members of the firm after outside counsel was hired are privileged, as this was an indication that litigation is anticipated.

- The fact-finding by the two associates is covered under Upjohn as it states the first step to solving a legal problem is ascertaining the factual background and sifting through it with a legal eye; therefore, this would is privileged.

- The communications between associates and firm members are privileged; analogized to physicians in the same hospital consulting each other – that is protected under the physician-patient privilege.

o Chadbourne, Inc. v. Super Court (CA)

- Smith fell on a sidewalk and sued Chadbourne for negligently maintaining the sidewalk. Chadbourne admitted receiving a written statement from an employee who had performed work on the sidewalk before and after Smith’s accident.

- The employee was not readily available for deposition because he was on military duty in Germany. The original statement had been taken by an independent investigator hired by Charbourne’s insurance company; it was not taken at the direction of Chadbourne, there was no evidence it was meant to be confidential, nor any that the statement was intended to be to obtain legal advice.

- Rules:

1) If the employee making the statement is a person who has been, or may, charged with liability the statement is privileged.

2) If the employee is not likely to be sued, the statement is not privileged unless he or she is the natural person to be speaking for the entity (e.g., CEO), in which case “the communication constitutes information which emanates from the” entity, not the employee.

3) If the employee is merely a witness to events, the statement is not privileged. The “fact that the employer requires him to make a statement for transmittal to the latter’s attorney does not alter his status or make his statement subject to the attorney-client privilege.”

4) However, if the employee-witness is required in the ordinary course of the entity business to file a statement or report, his or her statement is that of the employer. Whether it will be privileged will “be determined by the employer’s purpose is requiring the same; that is to say, if the employer directs the making of the report for confidential transmittal to its attorney, the communication may be privileged.” If, however, the employer has more than one purpose in requiring the employee to make a statement report, the dominant purpose will control.

Entities and the Holder of the Privilege

Every director shall have the absolute right at any reasonable time to inspect and copy all books, records, and documents of every kind.

The privilege may be used to prevent shareholders from such information and there is no exception for closely-held entities.

o Smith v. Laguna Sur Villas Community Assn.(CA)

- Condominium unit owners sued the condominium association for legal expenses and sought to inspect the association’s law firm’s work product and legal bills.

- The unit owners were blocked by the privilege as the condominium association was the holder of the privilege. The unit owners are not equivalent to directions in the condominium association. If the directors of the association are also unit owners, they are not barred but the information they obtain cannot be given to or used in favor of the unit owners.

Privilege and successors – merger, acquisition, new management

Once the management changes because new officers are elected, there is a merger, etc., the power to waive the privilege then resides with new management only. Thus, prior conversations between old management and the entity attorney concerning corporate matters may be waived by new management. Prior management cannot use the privilege as a shield against the discovery of past fraud or crime, improper allocation of resources, embezzlement, etc.

A successor trustee assumes all of the powers of trustee, including the power to assert the attorney-client privilege as to confidential communications on the subject of trust administration.

▪ The trustee, rather than the trust, is the holder of the privilege because the trust cannot hire a lawyer and become the client, a client must be a person or entity; therefore, the trustee is the holder.

▪ When a fiduciary (e.g., trustee) hires an attorney or guidance in administering a trust, the fiduciary alone, in his or her capacity as a fiduciary, is the attorney’s client.

If the entity is acquired by another corporation and ceases to exist, the privilege is held by the successor corporation.

Anticipatory Communications from an Insured to an Insurer

Suppose an insured sends a communication to her insurer expressing concern that she might be vulnerable to a lawsuit by a third party - is this a communication between a "client" and a "lawyer”?

California courts have held that reports filed with, or communications to, an insurer before any litigation has commenced that relate to a possible claim against the insured are protected under the attorney-client privilege if (1) the insurance policy requires that the insured be defended, and (2) if the dominant purpose for transmittal was for evaluation by insurance counsel who would defend the insured.

o Travelers Insurance Companies v. Superior Court (CA)

- Client sued doctor for medical malpractice. Attorney failed to bring client’s case to trial before statute of limitations and case dismissed. Attorney filed report with Insurance concerning the dismissal but did not tell client about dismissal. Client found out and sued attorney and sought discovery of documents between attorney and insurance.

- There is no privilege as to any communication prior to the alleged negligent act of the attorney causing harm to the client (dismissal of the medical lawsuit).

- There is an absolute privilege as to any communication after the services of the attorney terminate (client fired attorney).

- A privilege exists regarding any communication during the time after the negligent act causes the client harm and before the attorney’s representation ends when the communication meets Chadbourne’s dominant purpose test.

▪ The test as stated above: if the employee-witness is required in the ordinary course of the entity business to file a statement or report, his or her statement is that of the employer. Whether it will be privileged will “be determined by the employer’s purpose is requiring the same; that is to say, if the employer directs the making of the report for confidential transmittal to its attorney, the communication may be privileged.” If, however, the employer has more than one purpose in requiring the employee to make a statement report, the dominant purpose will control.

Ex Parte Contact with Represented Parties or Persons

The “no contact rule”: As a general rule, unless there is a privilege involved, counsel for any party has a right to interview an adverse party's witnesses, if they are willing, without the presence or consent of opposing counsel. However, when a witness is represented by his or her own attorney, however, it is unethical for a lawyer who knows about this representation to contact the witness directly without that witness's attorney giving consent - until the attorney gives consent, contact is permitted only with the attorney representing that witness (MR and CA).

Of course, parties are free to contact each other directly.

"Party" or "Person"

The “no contact rule” applies to any “person” in MR, to any “party” in CA.

- Includes witnesses or experts not named parties in the suit

Who is a "Represented" Party or Person?

California courts have utilized two important distinctions in resolving cases involving contact with entity constituents:

1) Is the party currently affiliated with the entity or has employment with the entity terminated?

2) Was the party in the "control group" or was the party an employee without managerial authority?

California defines the "control group" using the Upjohn definition: "officers and agents…responsible for directing the entity's actions in response to legal advice."

A "managing agent" is an employee having substantial discretionary authority regarding decisions that ultimately determine corporate policy or regarding decisions affecting significant aspects of a corporation's business.

Is the ex parte communication prohibited? The table answers the following (Nalian Trucklines v. Nakano Warehouse - CA):

| |Employment |

| | |Former |Current |

|Status | | | |

| |Non-control group |No |Maybe* |

| |Control group |No |Yes |

* Maybe: contact is prohibited if the employee (1) supervises, directs or regularly consults with the organization’s lawyer concerning the matter, (2) has the authority to obligate the organization with respect to the matter, or (3) may have his or her act or omission imputed to the organization regarding the matter – if it’s within the employee’s scope of employment.

Counsel seeking contact with entity employees should attempt to learn whether the employee is covered by the "no contact rule." If counsel has reason to believe the employee might be covered, further inquiry should be undertaken or entity counsel should be contacted in order to determine the employee's status.

Actual Knowledge of the Representation

Even if a person falls within the no-contact rule, the attorney may have an ex parte exchange with that person if the attorney does not know that the person is being represented in the relevant matter.

Note that attorneys are not barred from ex parte communications if no complaint has been filed yet, as that person is not represented in the matter since there is no matter.

An attorney may not, either before or after the commencement of litigation, communicate ex parte with an employee of a corporation about a matter where the attorney actually knows the corporation and its employee are represented by an attorney in the matter at the time of the ex parte communication; constructive or presumptive knowledge of representation is insufficient to prohibit the ex parte contact.

Consent of Counsel

Under the MR and CA, if a constituent of an organization is represented in the matter by his or her own counsel, the consent by that counsel to the communication will be sufficient.

The MR makes this express; while courts have interpreted CRPC Rule 2-100 in this manner because it is consistent with Rule 3-600(A), which says that the entity is the client of the corporation's attorney.

What if an entity is represented by outside counsel? May an opposing lawyer have contact with the entity's inside counsel?

MR 4.2 generally permits this contact, however, if inside counsel is in fact a party to the matter and is represented by the same counsel as the organization, such contact is improper.

CRPC Rule 2-100(C)(1) states that the anti-contact rule is generally inapplicable in all contacts with governmental personnel.

Contact with Unrepresented Persons

Lawyers are permitted to have contact with unrepresented persons.

However, when such contact does occur, the lawyer must avoid stating or implying that he or she is disinterested, or that he or she will protect the interests of the unrepresented person (CA).

The lawyer must make it clear, if the unrepresented person misunderstands the lawyer's role, that the lawyer is acting on behalf of a client who has an interest in the matter.

If the unrepresented person's interests are or may be in conflict with the client, the lawyer should advise the unrepresented person to obtain legal counsel, and should refrain from providing legal advice.

The MR states an important rule that an attorney may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” when the lawyer is not acting as a representative of client or in any capacity as a lawyer.” Some situations, lawyers are permitted to deceive third parties, the situations follow.

Deceptive investigation techniques: government intelligence agents

Anti-deceit provisions do not apply to attorneys employed by the government intelligence or national security agencies from misrepresenting their identity, employment, or even allegiance to the US if such misrepresentations are made in support of covert activity on behalf of the US and are duly authorized by law.

Deceit under oath in a US court or before Congress is impermissible.

Deceptive investigation techniques: police agents

Law enforcement officials frequently use deception in obtaining evidence, such as sting operations and through undercover agents.

o State v. Athan

- Athan was a suspect in rape and murder charges but there was insufficient evidence to charge him. Detectives posed as a law firm and sent Athan a letter inviting him to join a class action lawsuit. When they received the response, it was sent unopened to a police lab where his DNA was extracted from the saliva used to seal the envelope.

- The court held this permissible as it was addressed to the person who received it and sent it to the police lab, even though it was not the person Athan thought the recipient to be.

However, impersonating a public defender or the defendant’s attorney is an impermissible form of deceit (in regards to the matter at hand).

Deceptive investigation techniques: testers

Testers are typically used in discrimination cases. An example of a tester is an African-American couple that report to be interested in buying a house and then a white couple that do the same for the purposes of comparing the couples’ treatment and offers they receive.

Lawyers are allowed to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights (must be good faith such has taken place), provided the lawyer’s conduct is otherwise in compliance with disciplinary rules.

Covert activity means an effort to obtain information on unlawful activity through the use of misrepresentations.

1) Must have good faith such violations occurred.

2) Lawyer cannot himself engage in deception, exception: government attorneys

3) Advising a 3rd party to engage in deception is OK as long as good faith belief violations occurred.

Federal Prosecutors and Ex Parte Contacts

The use of informants, or undercover investigators (professional or not), by government prosecutors in a pre-indictment, non-custodial situation (lawyers looking to obtain information for arrest warrant), absent the certain types of misconduct (i.e., where the prosecutor issues a subpoena for the informant, not to secure his attendance before a grand jury, but to create a pretense that might help the informant elicit admissions from a represented suspect), will generally fall with the "authorized by law" exception to the anti-contact rule and therefore will not be subject to sanctions.

▪ Note: the informant is essentially acting as the prosecutor but that is OK. Furthermore, the use of “fake court papers,” such as a subpoena, to an informant for use with a represented party did not violate the no-contact rule.

Again, the “no contact rule” only applies when the prosecution has actual knowledge that the person to be contacted is being represented by counsel in this particular matter. Actual knowledge can be inferred from circumstances that make it clear that the particularized representation was present.

If the government attorney dos not know that the person is being represented, the attorney who knows a person is not represented by counsel must not suggest or imply that he or she is disinterested and must correct any misunderstandings that the person may have about the attorney's role. The only advice the attorney may give to the unrepresented person is to obtain a lawyer.

The Privilege and Government Lawyers

A governmental attorney-client privilege exists when private litigants in civil suits seek discovery of communications between government lawyers and their government-entity clients.

Federal-Federal Criminal Cases

o In re Grand Jury Subpoena Duces Tecum

- The court held that a governmental attorney-client privilege, in this case between the Office of the President as client and the Office of Counsel to the President as attorney, cannot be asserted to resist a subpoena issued by a federal grand jury.

- Thus, the case simply restated the known point that governmental lawyers can't claim a privilege against their own client, the United States -- represented in this case by the Independent Counsel's Office, on the one hand.

- Stated another way - a federal government entity cannot maintain the attorney-client privilege to withhold information relating to a federal criminal offense

For federal-federal criminal matters, the attorney-client privilege does not shield confidential information from a grand jury when the attorney is a government attorney.

Federal-State Criminal Cases

The Seventh Circuit has held that the governmental attorney-client privilege does not extend to criminal proceedings, such as a federal grand jury investigation of a state official.

▪ The government lawyer is duty-bound to report internal criminal violations, not to shield them from public exposure.

▪ However, Governmental officials are free to consult private counsel with assurance that the privilege fully applies to their conversations.

For federal-state criminal matters, the attorney-client privilege does not shield confidential information from a grand jury when the attorney is a government attorney.

Even if state law extends the privilege to criminal investigations, a state privilege should not be recognized if it will impair legitimate federal interests. Thus, as long as federal interests are not involved, each state may decide the scope, or existence, of its governmental attorney-client privilege.

Confidential Communications

The attorney-client privilege only protects communications between an attorney and a client that are intended to be confidential.

▪ If no attorney-client relationship exists, the privilege does not apply.

Thus, comments made to an attorney who had already declined to represent that person are not protected by the attorney-client privilege. [Once the attorney refuses to represent the prospective client, and explains to them that other counsel should be sought, there is no basis to form a reasonable belief that an attorney-client relationship exists, and thus there is no privilege.]

Note: CA protects electronically transmitted messages as privileged communications. Improper interception of such messages can be the basis for criminal liability.

Attorneys as Conduits or Messengers

The attorney-client privilege only protects communications that contain confidential information.

▪ The underlying facts which are the basis of the communication are not protected by the privilege.

Thus, conveying information from the government to the client is not a confidential communication. This is because the only thing being communicated between the lawyer and the client is public information, so there is no intent that it be confidential.

Eavesdroppers

In order to be protected by the attorney-client privilege, a communication must be intended to be confidential.

▪ The eavesdropper rule: if the client chooses to communicate in the presence of a third person who is not an authorized representative of the lawyer or client, the communication is not confidential. Communications made in a public place in disregard of being overheard are not confidential.

▪ The risk is upon the client to see to it that the conditions of the consultation with the attorney are appropriate to insure privacy.

Courthouse (i.e., in the public corridors of the courthouse)

Where the attorney and client have chosen a public place in which to discuss matter pertaining to their professional relationship, and a third person overhears their conversations without resorting to surreptitious methods, they are deemed to have waived the privilege they might otherwise have enjoyed so far as the testimony of the third person is concerned.

Courtroom

A remark made by a defendant to his counsel that is overheard in the courtroom while trial is in session is not privileged;

Likewise, where a court reporter overhears a conversation between an attorney and his client during a recess, while in plain sight, that conversation is not privileged;

A harder question exists when a court reporter overhears counsel and his or her client conversing (even though whispering so as attempting not to be heard) while court is in session. In a situation similar to this, the Idaho Supreme Court admitted the statement saying "if a communication is made so that it can be overheard by a third person, it obviously is not calculated to insure confidentiality."

What the Privilege Does Not Cover

The attorney-client privilege protects communications between lawyer and client, it does not extend to facts which are not part of these communications.

▪ Thus, it is generally held that the fact that a client has consulted an attorney, the identity of the client, the dates and number of visits to the attorney, and the fee arrangements are outside the scope of the privilege.

These facts may be discovered by the adversary party.

Details of the Attorney-Client Relationship

Fact of Employment or Meeting Dates

The fact that an attorney has been employed, and the dates on which the attorney and client met, are not covered by the privilege because these facts are not communications.

Fee Information

The fee arrangement is generally not covered by the privilege.

However, correspondence, bills, ledgers, statements and time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law, fall within the privilege.

▪ In fact, CA states that a written fee contract is deemed a confidential communication.

Client Identity and the Last Link Doctrine

The general rule in most states is that the identity of the client is not covered within the attorney-client privilege. However, many jurisdictions, and CA, recognize an exception that permits withholding of the client's name and fee information in certain circumstances (last link doctrine).

Two distinct rationales support the application of the last link exception, which protects the identity of the client under the attorney-client privilege.

1) Disclosure is the last link in the chain of incriminating evidence that is likely to lead to the client's indictment. Thus, an attorney may not be ordered to disclose a client's identity if disclosure would be the final step in the chain of evidence to indict or prosecute the client. However, if the client has already been indicted, the exception does not apply and the client's identity would have to be disclosed.

2) Disclosure is the last link to the discovery of the attorney-client privileged communications. Here, disclosure of the identity of the client is in substance a disclosure of the confidential communication in the professional relationship between the client and the attorney. Nondisclosure is permitted where revealing the client's identity would also reveal the purpose for the representation, and thus would be a last link to this protected confidential communication.

The last link exception does not apply if the legal representation was obtained in furtherance of intended criminal or fraudulent activity.

Another exception to the general rule that a client’s name is generally discoverable is "where known facts concerning an attorney's representation of an anonymous client are such that the disclosure of the client's identity would implicate the client in unlawful activities, thus exposing the client to potential investigative action or criminal or civil liability." Furthermore, if entire client lists and payments owed to an attorney are sought, the right of privacy may block disclosure.

Third Party Pays Legal Fees

Does the last link doctrine apply when a client's fee is paid by a third party and disclosure of this third party's identity is sought? If the third party does not establish an attorney-client relationship with the attorney, there can be no confidential communications to protect and so discovery is permitted.

A client's motive for seeking legal advice is a confidential communication protected by the attorney-client privilege, so the client's identity is protected if disclosure would reveal the motive for seeking that legal advice.

Courts have concluded that a third party who becomes a client must seek personal legal advice that concerns the very matter for which the other clients are being represented (e.g., third party becomes client because he wants joint representation).

Coaching Clients

Coaching is a proper subject of impeachment in cross-examination, so long as the attorney conducting the examination does not ask questions directed at eliciting the substance of what was said between the attorney and the client.

Pre-existing Business Records and Personal Papers

When a client generates a document for the benefit of legal counsel, the attorney-client privilege applies to the document. By contrast, pre-existing documents, including business records, are not protected by the attorney-client privilege because they were not generated for the purpose of communicating in confidence with an attorney.

▪ Even though the attorney-client privilege might not apply to pre-existing documents, the Fifth Amendment privilege against self-incrimination might shield them from discovery.

Fifth Amendment Privilege against Self-Incrimination

In order to receive Fifth Amendment protection of the privilege against self-incrimination the information sought must be:

1) incriminating,

2) personal to the defendant

3) obtained by compulsion, and

4) testimonial or communicative in nature.

The Fifth Amendment only protects against compelled self-incrimination and not against the mere disclosure of private information.

According to the Supreme Court, Fifth Amendment protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.

For evidence to be "testimonial" it must reveal the contents of a person's mind. Physical evidence is generally considered to be non-testimonial, and so its production can be compelled, even if the evidence is incriminating.

The law recognizes an important difference between compelling communications from a person and compelling that person to engage in conduct that may be incriminating.

Thus, a defendant may be compelled to provide blood samples, hair samples, voice exemplars, fingerprints, handwriting samples, and DNA samples or participate in a line-up, wear an item of clothing or take a sobriety test.

Business Records

Business records are not protected from subpoena unless the act of production is testimonial.

- The act of production of documents may be testimonial when it:

(1) concedes that the documents requested exist; or

(2) acknowledges that the documents requested are in the possession and control of the taxpayer/person; or

(3) serves to authenticate the genuineness of the documents.

Production is typically testimonial if the records were made personally by the individual because it concedes the documents exist, acknowledges they are in the possession of the individual, and authenticates them.

- If records were produced by a third-party (e.g., an accountant) but in possession of the individual, production may be testimonial because it would concede they exist and acknowledge they are in the possession of the individual (just subpoena the third-party for their copy).

Conversely, if the documents were prepared by a third-party and in possession of the lawyer or third-party, production would not be testimonial because such protection does not extend to anyone other than the accused.

o Fisher v. United States (Supreme Court)

- Tax documents were prepared by the accountants which were then transmitted first to the client and then to the attorney.

- The Fifth Amendment does not prohibit enforcement of a documentary summons directing a taxpayer's accountant to produce a taxpayer's own records in the possession of the accountant because there is no personal compulsion against the accountant in the enforcement of the summons.

- Where documents are unobtainable by summons from the client because the act of producing the documents would be self-incriminating under the Fifth Amendment, and the client has transferred the documents to his lawyer for the purpose of obtaining legal advice, the documents are likewise unobtainable by summons from the lawyer by reason of the attorney client privilege.

- The subpoena served on taxpayer requiring him to produce accountant's work-papers was not testimonial: it did not compel oral testimony; nor did it compel taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought.

▪ Note: the accountant's work-papers are not the taxpayer's - they were not prepared by the taxpayer, and they contain no testimonial declarations by him.

o United States v. Doe (Supreme Court)

- Unlike Fisher, in this case, the sole proprietor's act of producing the subpoenaed records was a testimonial communication compelled by the subpoena because the enforcement of the subpoenas would compel [the taxpayer] to admit that records exist, that they are in his possession, and that they are authentic. These communications, if made under compulsion of a court decree, would violate [the taxpayer's] Fifth Amendment rights.

- The government could have obtained the production of the records by offering use immunity, or could have seized them by search warrant.

The Collective Entity Doctrine

Corporations and other entities do not have a Fifth Amendment privilege against self-incrimination and thus may not refuse to produce their records, unless some other privilege applies.

The collective entity doctrine states that a representative of an entity may not claim a personal Fifth Amendment privilege as a justification for refusing to produce entity records, even if the documents are incriminating.

Does the collective entity doctrine apply to custodians who are no longer employed by the corporation? Courts have split on the answer:

1) After an employee's relationship with an entity terminates, the employee may assert the privilege in a personal capacity as to entity documents still in his or her possession.

2) Other courts view the issue in terms of the character of the records; the documents are still corporate records which the custodian possesses only by having been an agent of the corporation.

Personal Papers

Courts have differed on whether private papers should be entitled to Fifth Amendment protection.

1) Several courts have held that if the creation of the documents subpoenaed was not compelled, the contents of the documents are not protected regardless of whether the documents are business records or private papers.

2) Other courts have chosen to provide Fifth Amendment protection for voluntarily created private papers.

Pre-existing Records, Physical Evidence, and the Fourth Amendment

May search warrants reach the offices of lawyers?

Government search warrants of lawyer offices are permissible where the search warrant is valid, the search is reasonable, and the attorney-client privilege does not cover the requested property.

Physical Evidence

o People v. Meredith (CA)

- The client was accused of robbery and murder. The prosecution sought to show the place where the victim’s wallet was found – a witness testified he observed the victim’s wallet in a trash can behind the defendant’s residence.

- The defendant told the lawyer he had taken the wallet, attempted to burn it, then put it in the trash. An investigator retried the wallet and let the attorney examine it, and the attorney turned it over to the police.

- Rule: An observation by defense counsel of his investigator, which is the product of a privileged communication, may not be admitted unless the defense by altering or removing physical evidence has precluded the prosecution from making that same observation.

- Note: the communication of the location of the wallet to the investigator did not waive the attorney-client privilege because the communication was reasonably necessary to accomplish the purpose for which the attorney has been consulted (CA evidence code).

- Note: This case illustrates that the attorney-client privilege is not strictly limited to communications, but extends to protect observations made as a consequence of protected communications (so long as the lawyer or agent alters or removes the physical evidence precluding the prosecution from making that same observation).

Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question.

A lawyer cannot be a repository of evidence. The policy behind this is prevent a defendant in a criminal case from permanently sequestering physical evidence such as a weapon or other article used in the perpetration of a crime by delivering it to his attorney.

- Although, the fact that the client delivered such evidence to his attorney may be privileged, the physical object itself does not become privileged merely by reason of its transmission to the attorney.

However, where counsel does not alter evidence, and has no possession of evidence, the information is protected by the attorney-client privilege; moreover, the defendant cannot be compelled by subpoena to produce the weapon because the production would violate his Fifth Amendment privilege because the act of producing the gun would be evidence of the defendants possession and control.

ABA MR states that applicable state or federal law may permit retention of physical evidence for the limited purpose of conducting an examination that will not alter or damage it before turning it over to the police or prosecutor.

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