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Rule 503. Lawyer-Client Privilege.
(a)0Definitions. (1) The definition of "client" extends the status of client to one consulting a lawyer preliminarily with a view to retaining him, even though actual employment does not result. McCormick (2d ed.) § 88, at 179. The client need not be involved in litigation; the rendition of legal service or advice under any circumstances suffices. 8 Wigmore Evidence §2294 on (J. McNaughton rev. 1961). The services must be professional legal services; purely business or personal matters do not qualify. McCormick (2d ed.) § 88, at 179-80. Under this subdivision, the term "organization" should be given a broad interpretation. Several words are omitted from the draft of proposed Federal Rule 503; this is only a matter of style.
(2)0The proposed Federal Rules of Evidence as submitted to Congress by the United States Supreme Court did not contain a definition of "representative of the client." Because of uncertainty about the extent of the privilege to be granted to corporate clients, the Advisory Committee came out in favor of a case-by-case analysis. This approach is rejected here. "An ad hoc approach to privilege pursuant to a vague standard achieves the worst of possible worlds: harm in the particular case because information may be concealed; and a lack of compensating long-range benefit because persisting uncertainty about the availability of the privilege will discourage some communications." Note, Attorney-Client Privilege for Corporate Clients: The Control Group Test, 84 Harv. L. Rev. 424, 426 (1970). No definition of "representative of the client" will be perfect, but the best approach to corporate privilege developed to date is the "control group" test as adopted in Alaska Rule 503(a) (2). See City of Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 483, 485 (E.D. Pa. 1962). The "control group" test is admittedly restrictive and has been criticized by some courts. See, e.g., Harper & Row Publishers, Inc., v. Decker, 423 F.2d 487, 491-92 (7th Cir. 1970), aff'd by an equally divided court per curiam, 400 U.S. 348, 27 L.Ed.2d 433 (1971). However, the restrictive view brings the corporate privilege more in line with the privilege available to unincorporated business concerns. Business organizations should not receive different treatment on evidence questions in courts of law merely because of differences in financial structure.
If, for example, A runs a taxi service as a sole proprietorship with several employees, and one employee driver is involved in an accident for which A is sued, the employee's statements to A's attorney are not within the attorney-client privilege, even though A may order his employee to talk with the lawyer. If A incorporates, the ruling should not change. It should be sufficient that A and other corporate officers having the capacity to seek legal advice and to act on it can claim the benefits of the privilege for private communications with counsel. A more permissive privilege would result in suppression of information conveyed to attorneys by employees who are more like witnesses than clients and who have no personal desire for confidentiality.
(3)0A "lawyer" is a person licensed to practice law in any state or nation. There is no requirement that the licensing state or nation recognize the attorney-client privilege, thus avoiding excursions into conflict of laws questions. "Lawyer" also includes a person reasonably believed to be a lawyer. For similar provisions, see, Cal. Evid. Code § 950 (West 1966). Administrative practitioners are not lawyers under Rule 503 (a) (3), but may be included as "representatives of the lawyer" under Rule 503(b) (4).
(4)0The definition of "representative of the lawyer" recognizes that the lawyer may, in rendering legal services, utilize the services of assistants in addition to those employed in the process of communicating. Thus the definition includes an expert employed to assist in rendering legal advice. It also includes an expert employed to assist in the planning and conduct of litigation, though not one employed to testify as a witness. The definition does not, however, limit "representative of the lawyer" to experts. Whether his compensation is derived immediately from the lawyer or the client is not material.
This rule does not expressly deal with communications from an insured to his insurance company. If the insurance agent to whom the information is forwarded were viewed as a "representative of the lawyer" under Rule 503(a) (4), the privilege would apply. This is the rule in most state courts. See McCormick (2d ed.) § 91 at 190. Some federal courts have been unsympathetic to this line of reasoning because of the peculiar nature of the insurance "situation." See, e.g., Gottlieb v. Bresler, 24 F.R.D. 371 (D.D.C. 1959). The demand for privilege is greater when there is a close connection between lawyer and agent and they rely upon confidentiality in their relationship. Thus, the result in any particular case may turn on the specific facts involved. However, it is clear that no privilege is available when a statement is being sought in a controversy between the insured, or one claiming under the insured, and the insurance company. McCormick (2d ed.) § 91, at 190-91; Annot., Privilege of Communications or Reports Between Liability or Indemnity Insurer and Insured, 22 A.L.R.2d 659 (1952).
(5)0The requisite confidentiality of communication is defined in terms of intent. A communication made in public or meant to be relayed to outsiders or which is divulged by the client to third persons can scarcely be considered confidential. See LaMoore v. United States, 180 F.2d 49, 9th Cir. (1950); McCormick (2d ed.) § 95. The intent is inferable from the circumstances. Unless intent to disclose is apparent, the attorney-client communication is confidential. Taking or failing to take precautions may be considered as bearing on intent. "Communications which were intended to be confidential but were intercepted despite reasonable precautions remain privileged." See Subdivision (b) infra; see also J. Weinstein & M. Berger, Weinstein's Evidence, § 503(a) (4) [01] (1979).
Practicality requires that some disclosure be allowed beyond the immediate circle of lawyer-client and their representatives without impairing confidentiality. Hence the definition allows disclosure to persons to whom disclosure is in furtherance of the rendition of professional legal services to the client, contemplating those in such relation to the client as "spouse, parent, business associate, or joint client." Cal. Evid. Code § 952, Comment (West 1966).
(b)0General Rule of Privilege. This subdivision sets forth the privilege, using the previously defined terms: client, representative of the client, lawyer, representative of the lawyer, and confidential communication. It is in accord with the Alaska rules on the subject that are superseded by this rule: Rule 43(h) (2), Alaska R. Civ. P., and Rule 26(b) (3), Alaska R. Crim. P.
Common law decisions frequently allowed an eavesdropper to testify to overheard privileged conversations and approved admission of intercepted privileged letters. Today the evolution of more sophisticated techniques of eavesdropping and interception calls for abandonment of this position. The rule accordingly adopts a policy of protection against these kinds of invasion of the privilege.
The privilege extends to communications (1) between client or his representative and lawyer or his representative, (2) between lawyer and lawyer's representative, (3) by client or his lawyer to a lawyer representing another in a matter of common interest, (4) between representatives of the client or the client and a representative of the client, and (5) between lawyers representing the client. All these communications must be specifically for the purpose of obtaining legal services for the client; otherwise the privilege does not attach.
When clients represented by different lawyers pursue a "joint defense" or "pool information," subdivision (b) (3) provides that each client has a privilege as to his own statements, but that any client wishing to disclose his own statements made at the joint conference may do so.
When there is no common interest to be promoted by a joint consultation, the Rule does not apply. Compare, this subdivision to subdivision (d) (5). The privilege is waived by the client if he or she raises an issue whose resolution requires disclosure of otherwise confidential communications. Lewis v. State, 565 P.2d 846, 850 n.4 (Alaska 1977).
(c)0Who May Claim the Privilege. The privilege is, of course, that of the client, to be claimed by him or by his personal representative. The successor of a dissolved corporate client may claim the privilege. N.J. Stat. Ann. § 2A:84A-20(1) (West 1976).
The lawyer may not claim the privilege on his own behalf. However, he may claim it on behalf of the client. It is assumed that the ethics of the profession will require him to do so except under most unusual circumstances. American Bar Association Code of Professional Responsibility, Canon 4. His authority to make the claim is presumed unless there is evidence to the contrary, as would be the case if the client were now a party to litigation in which the question arose and were represented by other counsel.
(d)0Exceptions. In general this subdivision incorporates well established exceptions.
(1)0Furtherance of Crime or Fraud. The privilege does not extend to advice in aid of future wrongdoing. 8 Wigmore § 2298. See United Services Automobile Association v. Werley, 526 P.2d 28 (Alaska 1974). The wrongdoing need not be that of the client. The provision that the client knew or reasonably should have known of the criminal or fraudulent nature of the act is designed to protect the client who is erroneously advised that a proposed action is within the law. No preliminary finding that sufficient evidence aside from the communication has been introduced to warrant a finding that the services were sought to enable the commission of a wrong is required. While any general exploration of what transpired between attorney and client would, of course, be inappropriate, it is sometimes feasible, either at the discovery stage or during trial, so to focus the inquiry by specific questions as to avoid any broad inquiry into attorney-client communications. In some cases it will not be possible to probe without substantially invading the privileged area. When these cases arise, the court may require that a prima facie case of wrongdoing be established by independent evidence before the privilege is denied. Even where the perimeter of the privileged relationship can be analyzed without probing too deeply into confidential communications, such analysis will not be necessary if independent evidence of wrongdoing is available.
The words "or used" are added to the proposed federal version of the rule to cover the case of the client who decides to use legal advice for an improper purpose, when he knew or should have known he was committing a crime or fraud.
(2)0Claimants Through Same Deceased Client. Normally the privilege survives the death of the client and may be asserted by his representative. See Subdivision (c) supra. When, however, the identity of the person who steps into the client's shoes is in issue, as in a will contest, the identity of the person entitled to claim the privilege remains undetermined until the conclusion of the litigation. The choice is thus between allowing both sides or neither to assert the privilege, with authority and reason favoring the latter view. McCormick (2d ed.) § 94 Uniform Rule of Evidence 502(d) (2) (1974); Cal. Evid. Code § 957 (West 1966); Kan. Cir. Pro. Stat. Ann. § 60426 (b) (2) (1976); N.J. Stat. Ann. § 2A:84A-20(2) (b) (West 1976).
(3)0Breach of Duty by Lawyer or Client. The exception is required by considerations of fairness and policy when questions arise out of dealings between attorney and client, as in cases of controversy over attorney's fees, claims of inadequacy of representation, or charges of professional misconduct. McCormick (2d ed.) § 91; Uniform Rule of Evidence 502(d) (3) (1974); Cal. Evid. Code § 958 (West 1966); Kan. Civ. Pro. Stat. Ann. § 60-426 (b) (3) (1976); N.J. Stat. Ann. § 2A:84A20 (2) (c) (West 1976).
(4)0Document Attested by Lawyer. When the lawyer acts as attesting witness, the approval of the client to his so doing may safely be assumed, and waiver of the privilege as to any relevant lawyer-client communications is a proper result. McCormick (2d ed.) § 80, at 180; Uniform Rule of Evidence 502(d) (4) (1974); Cal. Evid. Code § 959 (West 1966); Kan. Civ. Pro. Stat. Ann. § 60-426 (b) (4) (1976).
(5)0Joint Clients. The subdivision states existing law. McCormick (2d ed.) § 91, at 189-190. For similar provisions, see Uniform Rule of Evidence 502(d) (5) (1974); Cal. Evid. Code § 962 (West 1966); Kan. Civ. Pro. Stat. Ann. § 60-426(b) (5) (1976); N.J. Stat. Ann. § 2A:84A-20(2) (West 1976). The situation with which this provision deals is to be distinguished from the case of clients with a common interest who retain different lawyers. See subdivision (b) (3) of this rule supra.
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Last Modified 7/14/1999
