United States: Legal Professional Privilege and Implied Undertaking

Legal Professional Privilege

Does your jurisdiction recognise or hold a concept of legal professional privilege? What is it called?

Yes, in the United States there are two types of legal professional privilege: the attorney-client privilege and the work product doctrine.

What is the basis at law of legal professional privilege in your jurisdiction?

The attorney-client privilege in the United States has its origins in English common law, and is one of the oldest privileges both at common law and in the U.S. legal system. The ability to communicate in a frank manner without concern that others might force one of the participants—either lawyer or client—to disclose the communications is at the heart of the attorney-client privilege. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client. The attorney-client privilege is generally absolute and it applies broadly in both litigation and non-litigation contexts. It may be asserted in all proceedings in which testimony may be compelled, including civil, criminal, administrative, regulatory and disciplinary proceeding.

The attorney work product doctrine provides another legal basis in the United States by which courts may provide protection from disclosure for certain materials created in the context of attorney-client relations. The doctrine originated in the 1947 Supreme Court case, Hickman v. Taylor, 329 U.S. 495, 510–11 (1947). The work product doctrine states that an adverse party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in anticipation of litigation or in preparation for trial. The presumption of non-disclosure is a rebuttable one.

The United States is a constitutional federal republic. Federal courts have jurisdiction over cases involving: the United States government, the Constitution or federal laws, or controversies between states or between the U.S. government and foreign governments. In addition to the federal court system each state—as well as the District of Columbia and certain U.S. territories such as Puerto Rico, Guam, and the U.S. Virgin Islands—has its own court system and has developed its own distinct jurisprudence on the attorney-client privilege and the attorney work product doctrine. Generally speaking, the federal courts will apply common law principles to claims of privilege unless the United States Constitution; a federal statute; or rules prescribed by the Supreme Court provide otherwise. State law, on the other hand, governs privilege regarding a claim or defense for which state law supplies the rule of decision. Although the laws of privilege in each state and in federal law are mostly similar, they are not identical.

How does legal professional privilege operate in your jurisdiction in the context of:

…lawyers qualified in your jurisdiction?

The protections of the attorney-client privilege and work product doctrine are available for qualifying communications for all attorneys qualified in the United States.

…in-house lawyers?

In-house attorneys often operate in quasi-business functions where legal advice is often intimately intertwined with and difficult to distinguish from business advice. Attorney-client privilege applies only to their law-related communications, not where the in-house attorney acts as a business or economic advisor. The availability of privilege will generally turn upon whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.

The work product created by an in-house attorney in anticipation of litigation qualifies for the protection of the work product doctrine.

…patent and trade mark attorneys?

The attorney-client privilege extends to all confidential communications made between attorneys and their clients which reflect the solicitation or provision of legal advice, including trademark and patent attorneys. For many years, however, the attorney-client privilege was not available for “confidential” client communications concerning patent prosecution. Historically, courts have held that communications regarding patent prosecution with attorneys-at-law were protected by the attorney-client privilege, but those same communications with “patent agents” were not.

In the United States, individuals who are scientifically qualified and prove their knowledge of patent law and procedure can prosecute patents as “patent agents” before the United States Patent and Trademark Office (USPTO), and if they also are admitted attorneys at law, those individuals can do so as “patent attorneys.” Currently there is a growing consensus in the courts that patent agents are members of a legal bar, i.e. the USPTO, and that the attorney-client privilege will apply to certain communications between a client and a patent agent. The privilege for communications with patent agents, unlike communications with patent attorneys, will generally be limited in scope to communications relating to obtaining legal advice on patentability and legal services in preparing and prosecuting a patent application.

To the extent patent agents, patent attorneys, or trademark attorneys create work product in anticipation of litigation, that work product can qualify for work product protection.

…foreign qualified lawyers?

The existence and scope of the attorney-client privilege will depend on the law governing the communications at issue. An American court is likely to apply a “touch base” test to determine if American or foreign law applies. In doing so, the court will apply the law of the country that has the most compelling or predominant interest in whether the communications should remain confidential. Courts have found that communications “touch base” with the United States and are protected by its privilege laws when they relate to legal proceedings in the United States or reflect advice on American law, even when they involve foreign attorneys. Communications that relate to foreign legal proceedings or foreign law are generally found to “touch base” with the foreign jurisdiction and whether or not those communications are protected from disclosure by application of foreign privilege, or other law, should be explored.

If American privilege law applies, the privilege protects communications between attorneys and their clients. Communications of foreign legal professionals whose jurisdictions do not license them as attorneys, or whose roles are not functionally equivalent to attorneys, are not protected unless they are acting as agents for licensed attorneys.

What materials or work product does legal professional privilege apply to in your jurisdiction?

The attorney-client privilege protects large categories of confidential information relating to the legal advice sought by the client and the attorney-client relationship. Generally, the attorney-client privilege will include in its scope: a) information communicated by the client to the lawyer for the purpose of seeking legal advice or having the lawyer provide legal services (including information acquired during a preliminary consultation prior to the client’s formal engagement of the lawyer), and (b) the advice or analysis provided by the lawyer to the client on the subject matter of the representation. Both of these are protected whether the communications are in oral form (e.g., in-person, telephone, video chat) or written form (e.g., e-mails, letters, memoranda). The privilege also protects documents that reveal or embody the substance of the actual or anticipated privileged communications (e.g., memos (including drafts) that reference the substance of legal advice; notes of a meeting or telephone call that reflect the substance of privileged communications).

The work product doctrine protects documents and tangible things that are prepared in anticipation of, or during the course of, litigation by (or for) another party or its representative from disclosure to third parties. Work product protects such things as information gathered by a client at the request of counsel; an attorney’s notes of interviews conducted of witnesses; summaries and chronologies of facts prepared by counsel; and an attorney’s strategies, legal theories and other mental impressions regarding matters at issue in the litigation. Unlike the attorney-client privilege, there does not need to be a communication for the work product doctrine to apply, nor does the protected information need to include legal advice or be prepared by the client or the attorney.

The protection provided by the work product doctrine is not absolute. So-called “fact” work product materials may be discovered if a party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. If the court orders discovery of those materials, it must protect against disclosure of so-called “opinion” work product – the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

What does legal professional privilege not cover in your jurisdiction?

Generally, the attorney-client privilege does not apply to communications that seek advice on or discuss non-legal issues. To determine if a communication is privileged, a court usually focuses on its primary purpose. Communications with counsel for the purposes of seeking business advice, rather than legal advice, are not protected by the attorney-client privilege. The attorney-client privilege also does not preclude the disclosure of the existence of the attorney-client relationship itself or the length of the relationship. In fact, the general nature of the services performed by the lawyer, including the terms and conditions of the retention, are generally discoverable and not shielded by the attorney-client privilege.

Similarly, the factual circumstances surrounding the communications between an attorney and a client, such as the date of the communication and the identity of persons copied on correspondence, are not privileged. This is true as well for the identity of participants in a meeting with an attorney, the length of a consultation and the documents evidencing same, e.g., calendars, appointment books. Documents which disclose the fee arrangement between an attorney and a client are also typically discoverable, except where such discovery would produce confidential communications with the client.

There are also public policy exceptions to the application of the attorney-client privilege. Under the “crime-fraud exception” the attorney-client privileges does not apply when a client and an attorney discuss how to commit a criminal or fraudulent act. The privilege may also be unavailable upon the death of a testator-client in certain circumstances where litigation ensues between the decedent’s heirs, legatees or other parties claiming under the deceased client. Similarly, if two parties are represented jointly by the same attorney in a single legal matter, it is generally the case that neither client may assert the attorney-client privilege against the other in subsequent litigation if the subsequent litigation pertained to the subject matter of the previous joint representation.

Finally, the United States has enacted various statutes which grant government agencies increased authority to conduct searches and monitor activity without judicial intervention, even when the activity includes communications between attorneys and their clients which may be protected by the attorney-client privilege.

Similar limitations exist for application of the work product doctrine. Documents and materials which are not created in anticipation of litigation do not qualify for protection. Thus, reports and materials produced in the ordinary course of the business do not qualify as work product.

How is legal professional privilege waived in your jurisdiction, who can waive it, and what are the consequences of waiver?

The privilege belongs to the client not the lawyer. As a result, only the client, not the lawyer, decides whether to forfeit or waive the privilege. A waiver can occur when a client fails to maintain the confidentiality of the communication. The waiver can be voluntary, implied, or inadvertent. A voluntary waiver occurs, for example, when the client discloses privileged information to a third party who is not bound by the privilege. An implied waiver occurs when a client defends challenged conduct by citing the advice received from counsel on the matter at issue in litigation, asserts reliance on counsel as an affirmative defense to a claim, or in a case when a client sues its counsel for malpractice. An inadvertent waiver occurs when the client shares privileged information inadvertently, such as in an email, a social media posting, or in a meeting with a third party who is not part of the privileged relationship. In some instances, a privilege waiver may be deemed to go beyond the specific matter disclosed and extend to all communications on the entire subject matter of the communication that was disclosed.

Because the client alone has the sole authority to waive the privilege, the attorney is required to assert or invoke the privilege when necessary on behalf of the client, even without an express instruction by the client. Failure to do so can result in a waiver of the privilege. In the age of electronic discovery, the risk of an inadvertent disclosure of a privileged communication or document is a serious one. Generally, federal and state laws allow a party who inadvertently discloses privileged material in the course of litigation to “claw back” the document and maintain the privilege, provided the party acted reasonably in preventing disclosure and in rectifying the misstep promptly after the disclosure was discovered. Parties in litigation will also often include a “claw back” provision in the parties’ confidentiality agreement and/or in court orders for the disclosure of documents in discovery to protect against inadvertent waivers of this nature.

Like the attorney-client privilege, the protections of the work product doctrine may also be waived. Thus, the voluntary disclosure of attorney work product to an adversary or a conduit of an adversary waives work product protection for those materials. Whether or not a waiver of work product protection has occurred will depend on the facts surrounding the disclosure of the materials and whether the disclosing party had a good faith, reasonable basis to believe that the recipient would maintain the materials in confidence. There thus may be greater room to share work product with persons allied with the client (e.g., accountants, non-lawyer advisors) without risk of waiver than there is with privileged attorney-client communications. When work product protection is deemed waived, typically the waiver only applies to the actual material disclosed and does not extend to its overall subject matter.

Any other comments?

The contours of the attorney-client privilege and work product doctrine in the United States are defined by the facts and circumstances surrounding the communications, the parties to the communications and the purpose of the communications. In determining whether the attorney-client privilege or work product doctrine applies to preclude disclosure, or if a disclosure will be compelled, close review of governing law must be undertaken. Different conclusions can be reached by variations in factual patterns or application of governing law, and possibly based on conflict of law issues among the various jurisdictions in the US federal system.

Implied Undertaking

Does your jurisdiction recognise or hold a concept of the implied undertaking?

The United States does not recognize the concept of an implied undertaking.

For jurisdictions that do not have the concept of the implied undertaking, are there any similar rules, restrictions or obligations in your jurisdiction?

Absent an express confidentiality agreement between the parties or an order of the court, there are no restrictions on the uses to which materials received in discovery may be put. In practice, the parties typically enter into a confidentiality agreement to ensure that information disclosed during the discovery process remains confidential and cannot be disclosed or used for purposes outside of the litigation matter. Once material has been filed with the court, however, the principle of public access to court records creates a presumption that the material will be available to the public despite the parties’ agreement to the contrary even when the material has been filed under seal. In determining whether the court should maintain in confidence documents filed under seal the burden will be on the party seeking to protect the materials from public disclosure to demonstrate to the court why the materials need to be maintained in confidence and subject to the terms of the parties’ confidentiality agreement or the court’s protective order.