1 Ethical Lawyering Spring 2006 Class 8

2 Rest. 68 Except as otherwise provided in this Restatement, the attorney-client privilege may be invoked as provided in § 86 with respect to: (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.

3 Rest. 87 (1) Work product consists of tangible material or its intangible equivalent in unwritten or oral form, other than underlying facts, prepared by a lawyer for litigation then in progress or in reasonable anticipation of future litigation. (2) Opinion work product consists of the opinions or mental impressions of a lawyer; all other work product is ordinary work product. (3) Except for material which by applicable law is not so protected, work product is immune from discovery or other compelled disclosure to the extent stated in §§ 88 (ordinary work product) and 89 (opinion work product) when the immunity is invoked as described in § 90.

4 MR 1.6 (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

5 MR 1.6, comment 3 The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client- lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

6 Restatement 75 (1) If two or more persons are jointly represented by the same lawyer in a matter, a communication of either co-client that otherwise qualifies as privileged under §§ and relates to matters of common interest is privileged as against third persons, and any co-client may invoke the privilege, unless it has been waived by the client who made the communication.§§ 6872 (2) Unless the co-clients have agreed otherwise, a communication described in Subsection (1) is not privileged as between the co-clients in a subsequent adverse proceeding between them.

7 Control Group Test for A/C Priv. “(I)f the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, or if he is an authorized member of a body or group which has that authority, then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer and the privilege would apply. In all other cases the employee would be merely giving information to the lawyer to enable the latter to advise those in the corporation having the authority to act or refrain from acting on the advice."

8 Upjohn Here, the communications at issue were made by 1) petitioner's employees to counsel for petitioner acting as such, 2) at the direction of corporate superiors 3) in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within 4) the scope of the employees' corporate duties, and 5) the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice.

9 Upjohn, cont. 6) Pursuant to explicit instructions from the Chairman of the Board, the communications were considered "highly confidential" when made, …, and 7) have been kept confidential by the company.

10 Rest. 73 When a client is a corporation,... the attorney-client privilege extends to a communication that: (1) otherwise qualifies as privileged... ; (2) is between an agent of the organization and a privileged person...; (3) concerns a legal matter of interest to the organization; and (4) is disclosed only to: (a) privileged persons... ; and (b) other agents of the organization who reasonably need to know of the communication in order to act for the organization.

11 Cal. Evid. Code There is no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

12 Rest. 79, comment f General waiver of all related communications is warranted when a party has selectively offered in evidence before a factfinder only part of a more extensive communication or one of several related communications, and the opposing party seeks to test whether the partial disclosure distorted the context or meaning of the part offered. All authorities agree that in such a situation waiver extends to all otherwise- privileged communications on the same subject matter that are reasonably necessary to make a complete and balanced presentation