CONFIDENTIALITY, LOYALTY AND THE ATTORNEY CLIENT PRIVILEGE
Attorney Client Privilege: The Basics
The purpose of attorney-client privilege is to encourage full and frank communications between lawyers and their clients, thus promoting the broader public interest in the observance of the law and the administration of justice. Upjohn Co. v. U.S.,449 U.S. 383, 389 (1981). The privilege rests on the need for a lawyer to know everything that relates to the client’s reasons for seeking representation. Trammel v. U.S. 40, 51 (1980). Thus, the privilege is to promote full disclosure by the client and to foster a relationship of trust. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985).
The privilege protects communications between a client and the attorney made in confidence for the purpose of obtaining legal advice. In re Keeper of Records, 348 F.3d 16, 22 (1st Cir. 2003); In re Grand Jury Subpoena 91-1(SJ), 31 F.3d 826, 829 (9th Cir. 1994); U.S. v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982); U.S. v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961) (privilege protects communications a client seeking legal advice and a lawyer providing legal advice). A communication is confidential only if it is not intended to be disclosed to third persons and it is waived if any significant part of the communication is disclosed to a third party who is not a representative of the client or the attorney. See, e.g., Permian Corp. v. U.S., 665 F.2d 1214, 1219 (D.C. Cir. 1981)(when confidential communications voluntarily disclosed to one person, the privilege is waived). The privilege protects information from discovery only if the communication was made for the purpose of securing legal advice. In re Bieter, 16 F.3d 929, 936 (8th Cir. 1994).
The privilege belongs to the client, not the attorney. U.S. v. Doe, 429 F.3d 450, 452 (3d Cir. 2005); In re Sarrio, S.A., 119 F.3d 143, 147 (2d 1997). The attorney may claim the privilege but only on behalf of the client. Haines v. Liggett Grp.,975 F.2d 81, 90 (3d Cir. 1992); In re Sarrio, S.A., 119 F.3d at 147.
The privilege survives the client’s death, see, e.g., Swindler & Berlin v. U.S., 524 U.S. 399, 408-411 (1998). It does not terminate at the conclusion of the representation or at the end of the dispute. U.S. v. Kleifgen, 557 F.2d 1293, 1297 (9th Cir. 1977).
The privilege protects communications between (1) the client or its representative and the attorney or the attorney’s representative; (2) the attorney with the attorney’s representative; (3) the client or its attorney with an attorney representing another client on a matter of common interest; (4) the client with a representative of the client; (5) communications between the client’s representatives and (6) communications between the client’s attorneys. In re Bieter, 16 F.3d 929, 935-36 (8th Cir. 1994).
Current Case Law Shaping the Scope of Privilege Protections
Fiduciary Exception to the Attorney-Client Privilege
In ERISA Cases
Under the fiduciary exception in ERISA cases, “a fiduciary of an ERISA plan ‘must make available to the beneficiary, upon request, any communications with an attorney that are intended to assist in the administration of the plan.” Bland v. Fiatallis N. Am., Inc., 401 F.3d 779, 787 (7th Cir. 2005) (quoting In re Long Island Lighting Co., 129 F.3d 272, 272 (2d Cir. 1997). This is because “[w]hen an attorney advises a plan administrator or other fiduciary concerning plan administration, the attorney’s clients are the plan beneficiaries for whom the fiduciary acts, not the plan administrator.” Wildbur v. ARCO Chem. Co., 974 F.2d 631, 645 (5th Cir. 1992).
The fiduciary exception generally applies only to communications about plan administration and not to communications after a final benefits determination or communications regarding challenges to the plan administrator in his or her personal capacity. Redd v. Bhd. of Maint. Of Way Emps. Div. of the Int’l Bhd. of Teamsters, No. 08-11457, 2009 U.S. Dist. LEXIS 46288 (E.D. Mich. June 2, 2009).
In Moss v. Unum Life Ins. Co., the 6th Circuit held that documents created by a plan administrator before the final benefits determination was made, but after litigation was instituted, are not subject to the fiduciary exception. No. 11-6017, 2012 U.S. App. LEXIS 17630, *34-35 (6th Cir. Aug. 17, 2012). The documents withheld involved communications concerning the pending lawsuit and thus were not related to plan administration. Id. at *35.
In Private Trusts
There is a common law exception to the attorney-client privilege “when a trustee obtains legal advice related to the exercise of fiduciary duties.” United States v. Jicarilla Apache Nations, 131 S.Ct. 2313, 2318 (2011). However, the United States Supreme Court recently held that the fiduciary exception does not apply to the general trust relationship between the United States and Native American tribes. Id. This is because “[t]he reasons for the fiduciary exception – that the trustee has no independent interest in trust administration, and that the trustee is subject to a general common-law duty of disclosure – do not apply” in the context of relations between the U.S. Government and the tribes. Id.
Attorney-Client Privilege and the Offensive Use Doctrine in Legal Malpractice
Under the offensive use doctrine, a litigant waives the attorney-client privilege when he “place[s] information protected by [the privilege] in issue through some affirmative act for his own benefit,” because “to allow the privilege to protect against some disclosure of such information would be manifestly unfair to the opposing party.” Cox. v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1418-20 (11th Cir. 1994). Therefore, a client waives the privilege when he accuses his attorney of breach of contract or malpractice, affirmatively placing the subject matter of the attorney’s representation at issue. Christenbury v. Locke Lord Bissell & Liddell, LLP, No. 1:11-CV-3459-JEC-JSA, 2012 U.S. Dist. LEXIS 111426, *17 (N.D. Ga. July 18, 2012).
In Christenbury v. Locke Lord Bissell & Liddell, the U.S. District Court for the Northern District of Georgia held that the offensive use doctrine also applied to communications with third-party attorneys about the same subject matter during the time period of the alleged malpractice. Id. In that case, an attorney suggested to plaintiff a particular financial product offered through fidelity and obtained through defendant a tax opinion. The defendant later withdrew the tax opinion, and plaintiff incurred penalties and taxes when he had to “unravel” his purchase of the financial product.
Plaintiff sued defendant for legal malpractice, and defendant sought discovery of all the legal advice given to plaintiff before the financial product was purchased. Plaintiff resisted discovery of the grounds of attorney-client privilege. The court held that, by bringing action against defendant, plaintiff put at issue the legal advice he received from both lawyers, because that advice was relevant to a determination of causation and comparative negligence. The attorney-client privilege as to the initial attorney before the transaction was completed, but not after, was thus impliedly waived. Id. at *22-23.