White Paper: Attorney – Client Privilege

The American College of Trial Lawyers has released its latest white paper on the law of attorney-client privilege.

Titled “Attorney-Client Privilege Update:  Current and Recurring Issues,” the 50-page paper was compiled by the College’s Attorney-Client Relationships Committee, led by Joe Arellano of Portland, Oregon.   The paper summarizes the law of attorney-client privilege, supporting its conclusions with citations to over 100 court decisions from around the nation.

Here is the Table of Contents:

1. AGENTS OF THE LAWYER

2. COMMUNICATIONS WITH NON-EMPLOYEE AGENTS OR FUNCTIONAL EQUIVALENTS OF CLIENTS

3. THIRD PARTIES NECESSARY TO FACILITATE COMMUNICATION/ADVICE

   A. Appraisers 

   B. Accountants

   C. Investment bankers/financial consultants

   D. Public relations consultants

   E. Other

   F. Limitations/qualifications

4. INTRA-ORGANIZATIONAL COMMUNICATIONS NOT INVOLVING LAWYER

5. DISCLOSURES AMONG SEPARATE ENTITIES IN CORPORATE FAMILY

6. RESPONSES TO AUDITORS’ REQUESTS/COMMUNICATIONS WITH AUDITORS

7. DISCLOSURES CONCERNING LITIGATION TO POTENTIAL PURCHASER OF CLIENT

8. COMMUNICATIONS WITH FORMER EMPLOYEES OF CLIENT

9. DISCLOSURES TO REFRESH WITNESS RECOLLECTIONS 

10. DISCLOSURES TO TESTIFYING EXPERTS 

11. COMMUNICATIONS BY EMPLOYEES WITH COUNSEL USING EMPLOYER’S EMAIL SYSTEM

   A. Communications by electronic means generally

   B. Privilege Waiver in the context of employer-furnished systems

12. COMMUNICATIONS ABOUT DRAFTS AND OTHER MATTERS DISCLOSED IN FINAL FORM 

13. DISCLOSURES TO GOVERNMENT AGENCIES AND SELECTIVE WAIVER

14. INADVERTENT DISCLOSURE DURING DISCOVERY

15. CURRENT VALIDITY OF THE FIDUCIARY EXCEPTION

16. RECOGNITION OF THE PRIVILEGE IN INTRA-LAW FIRM COMMUNICATIONS WITH IN-HOUSE COUNSEL CONCERNING A CURRENT CLIENT OF THE FIRM

The paper is particularly helpful to those who rarely see such issues or whom practice in states (such as Tennessee) where the law is largely undeveloped.

In the event there is an issue with the link to the paper, you can also find it here:  feb-2018—attorney-client-privilege-update_current-recurring-issues