Book Review
Navigating the Tricky Territory of Privilege
ATTORNEY CLIENT PRIVILEGE IN THE UNITED STATES
N. William Delker and
Lawrence Friedman*
Among the many hazards of modern lawyering is the unsolicited request for legal advice. We live in an age in which the law permeates our personal and commercial relationships, such that you would not be surprised, for example, to find yourself discussing with an old family friend his doubts about the accuracy of certain documents he filed for his wife’s business. Over lunch, he details his doubts and asks your advice, and you respond with reassuring words and a promise to think on the situation.
This seemingly innocuous encounter takes on added dimension when you arrive at work some time later to discover a grand jury subpoena sitting on your desk. It appears the government has launched an investigation and your friend has retained counsel. And suddenly a lunch time conversation with an old friend becomes a pointed legal question: was the conversation protected by the attorney-client privilege, or will you have to testify against your friend, jeopardizing both the friendship and possibly his wife's business?
The answer to this question depends, of course, upon whether your friend confided in you because you were his friend, or for the purpose of seeking legal advice. And the legal research necessary to reach an answer likely would require you to plumb the depths of innumerable court opinions on the subject. Anticipating this and like issues, Professor Paul R. Rice of American University has ventured into this uncharted terrain in his comprehensive treatise, Attorney-Client Privilege in the United States (West Group, 2nd Edition, 1999).
Rice provides guidance to the practitioner attempting to untangle the many disparate threads and permutations of the attorney-client privilege, whether in the context of an ordinary business transaction or a high profile political investigation. He clearly illustrates the pervasiveness of privilege issues in nearly every aspect of modern legal practice by bringing together in one place federal case law addressing the privilege in all its facets.
Notwithstanding the ubiquity of privilege issues, few practitioners likely appreciate all the privilege's elements and exceptions. As succinctly explained by Massachusetts District Court Judge Charles E. Wyzanski in his oft-cited opinion in United States v. United Shoe Machinery Corporation, 89 F. Supp. 357 (D. Mass 1950): the privilege applies only if (1) the asserted holder of the privilege is or sought to be a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has not been (a) claimed and (b) not waived by the client.
Rice has taken this definition as the organizing theme of his treatise. Following a brief but thorough history of the privilege, the book turns from general principles to specifics of the elements of the definition, discussing whether persons are "attorneys" or "client" for privilege purposes; whether a communication is privileged; and whether a communication was made in confidence for the purpose of receiving legal advice and assistance.
Although certain aspects of the privilege at first blush appear so obvious that it is difficult to imagine that the issue could require an entire chapter’s explanation, even the simplest privilege issue may be fraught with pitfalls. For instance, the issue whether a person is an attorney covered by the privilege does not end with the person’s membership in the bar. Indeed, bar membership itself may not be a prerequisite to application of the privilege. In Chapter 3, the author notes that the privilege may apply to law students, patent agents, or tax practitioners.
Identifying the client is no easier, particularly when the client is a corporation. In Chapter 4, Rice assists the practitioner in determining whom the lawyer represents when the client is a corporation, government agency, insurance company, trust, testator, partnership, or other unincorporated entity.
Rice is particularly effective in correcting the misconceived notion that all information exchanged between attorney and client is protected by the privilege. As he explains in the book, the privilege is not designed to shield all facts -- only whether the client communicated information to his attorney. Nor are all communications from the attorney to the client protected. Because the privilege is designed to encourage the client to provide full information to the attorney, communications from the attorney to the client are protected only to the extent that they reveal the client's communications.
After explaining each of the elements of the privilege, Rice turns to a lengthy analysis of the exceptions to the privilege and waivers of privilege. As attorneys continue to press the boundaries of the attorney-client privilege in modern, complex litigation, in cases involving the production of tens of thousands of documents, the need to understand the limits of such principles as the subject matter waiver doctrine has never been more immediate.
Rice provides numerous examples that illustrate each aspect of the attorney-client privilege. One of the book's few flaws is its reliance upon unpublished opinions, a practice which will be less helpful to attorneys with limited access to electronic databases. Still, the decisions presented offer a wealth of fact patterns and analysis against which practitioners can contrast their own cases, and with which they can anticipate privilege issues. One ironic benefit of the growing complexity of attorney-client privilege law is the wealth of cases on the issue, particularly on such subjects as waiver.
The only other significant flaw to the treatise is the index, which, while adequately covering the broad topics, does little to direct the reader to more specific issues addressed in the treatise. Fortunately, the treatise is organized logically according to the elements and exceptions to the privilege. Practitioners familiar with the general nature of the issue they are researching can jump to that section of the treatise and generally find the specific topic without too much difficulty.
Rice has also published, under his own publishing company, a separate state law compendium on attorney-client privilege entitled Attorney-Client Privilege: State Law (1996). This supplement is available only on disk; the disks may be purchased individually by state or as a set. Organized like its federal counterpart, the state law supplement provides comprehensive treatment of the attorney-client privilege. While the privilege in most states mirrors the federal law, a number of states have made significant changes, either by statute, court rule, or judicial decision.
The value of the state law supplement is illustrated by its treatment of attorney-client privilege in New Hampshire. "New Hampshire . . . departs from federal law and the law of virtually all states in holding that a legitimate claim of privilege may not be overridden by a ‘compelling need’ for the protected communications," Rice notes in the supplement. While this example represents the most significant deviation from the federal privilege, the supplement catalogues other divergences as well, including the treatment of the privilege in will contests and the application of the privilege to corporations. For this reason, the state law supplement is an essential complement to the federal treatise for the New Hampshire practitioner.
The most significant shortcoming of the state law supplement is that it is only available on disk and only in WordPerfect 7.0, and there may be some difficulty in opening the supplement in Word 6.0. The disk format also means that there is no index to the state supplement, and it cannot be easily used without the federal treatise at hand. While the documents on disk offer rudimentary search capability through WordPerfect's search feature, it is not a substitute for an index.
Notwithstanding those minor flaws, Rice's federal treatise is a valuable tool for the practitioner in every field of law. For those attorneys who find themselves facing attorney-client privilege issues on a regular basis, Attorney-Client Privilege in the United States is an unmatched resource.
*N. William Delker is assistant state attorney general in New Hampshire, primarily handling appellate matters for the criminal division. Lawrence M. Friedman, a member of the Massachusetts Bar, is an associate at Choate, Hall & Stewart in Boston. Both attorneys are members of the adjunct faculty at the Massachusetts School of Law.