“ATTORNEY- CLIENT PRIVILEGE vs WORK PRODUCT”

What is privileged and what is not.

by Susan Carlson, CLI, CRT

 

There are five legally recognized forms of privileged relationships which exist. Although there can be variances due to jurisdictional issues, they include:

 

 

Attorney client privilege is the most longstanding and perhaps the most recognized form of privileged communications. It's purpose is to encourage honest and complete communication between a client and his or her attorney and vice versa.

 

John Henry Wigmore, professor and legal scholar, recognized to be the leading expert on the subject of Attorney Client Privilege states, as quoted by Black's Law Dictionary, that privilege exists

 

 

Originally constructed to prevent the attorney from having to testify against the client, the attorney, rather than the client, had the privilege. This is not the case today. The attorney- client privilege has developed over the years to be a matter of common law and today the privilege belongs to the client. It is the ultimately the right of the client to assert or waive the privilege, not the lawyer's.

 

A client needs only to seek advice from the attorney for the privilege to attach. The at-torney does not actually have to take the job and no fee need be paid to the attorney as legally, the privilege exists if in the client's mind, he believes to have consulted with the attorney.

 

Attorney client privilege also exists between co- counsel for multiple clients as well as those clients with a common interest in a case or possible case, such as class action.

 

Violation of the attorney client privilege is a big cause for attorney malpractice law suits and usually, it is easy to prove.

 

A well known case out of Illinois punctuates another point: If a client has sought advice based on fraud, or has revealed an intent to commit a crime, then the attorney client privilege does not attach and the attorney is permitted to divulge the received communi-cation. Marriage of Decker, 606 N.E.2nd Ill at 1101. The highest court agrees in United States v. Zolin, 491 U.S. 554, 563, 109 S. Ct. 2619, 2626, 105 L. Ed. 2d 469 (1989)

There is no such thing as investigator/client privilege and in most instances, there is no attorney/investigator privilege per se. It is important that we as professional investigators know the difference between what is privileged communication and what is not.

 

PRIVILEGE vs. WORK PRODUCT: preparation for trial.

Supreme Court Rule 201(b)(2) recognizes a privilege as to matters in preparation for trial. "Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the the party's attorney."

To be simple, privilege means that communication is legally private or simply put, that the other side is not entitled to know what you are saying (or doing).

 

Work Product is the term used to describe that which is protected by privilege under the auspicious of attorney strategy, theory, notes and communication to and from others. This is not as wide of a tent as some investigators may think and, if you read the Su-preme Court Rule, it will be clear that we need to be careful to guard our communica-tions to some degree.

 

Black's definition of Work Product is as follows:

 

 

That sounds simple, but it is not necessarily so and interpretations vary both by jurisdic-tion and those courts interpreting.

 

The Work Product doctrine was born from a 1947 case, Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S. CT 385, 393, (1947), in which the Court rejected "an attempt, without purported necessity or justification, to secure written statements, private memo-randa and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties."

 

Interpretation of the explanations can be difficult to understand for non-attorneys. Gen-erally speaking, if you are not sure whether your communication with your attorney- client will be considered by the court to be privileged attorney work product, don't write it down. Verbal reports to your attorney- client are always the preferred method of communication to start with in order to pass on your investigative findings or to give status reports. You can basically tell your attorney client anything, good or bad, about the case and he/she can write it down himself/herself and tell you whether or not to issue a formal report. Attorneys' notes of phone conversations with you are not discoverable!

 

A prosecuting attorney is required to turn over exculpatory information to the defense, but the defense attorney is not required to turn over inculpatory information to the pros-ecution so anything you tell him/her is going to be privileged.

 

By direction of your attorney-client, you can reduce to writing your investigative information to a formal report. Expect that your report will be turned over to the other side and write accordingly.

 

It is not often possible or even practical to expect that we are able to reach our attorney- clients on the phone to discuss our findings while out in the field or even any time soon, upon return to our office. The need to "reach out and touch someone" is not always accomplished by telephone and therefore a quick e mail seems to be the route most traveled in today's world.

 

So what does this mean? Do we need to be careful what we put into our e mails di-rected to our attorney clients? You bet we do. We can not assume that just because we are communicating with, or even working for an, attorney that what we say or do is going to be bullet - proof from a dreaded subpoena.

 

KOVEL PRIVILEGE - What is it and what does it do for us?

In 1961, the US Court of Appeals for the Second Circuit in New York, handed down their decision on a pivotal case which defines the application of the attorney - client privilege as it extends to third party consultants. The case is known as U.S. v Kovel 296 F2nd 918 (2d Cir. 1961).

 

The litigated issue in that case was whether or not communications between a client of a law firm and an accountant hired by the law firm to work on his case, were considered to be privileged communications or not. The position taken by the firm, Kamerman and Kamerman, and the accountant was that they were.

 

Louis Kovel was the accountant. He was a former IRS agent turned consultant, hired by Kamerman to work on a case of their client, a man named Hoops. When Kovel re-fused to testify in front of a grand jury to discuss communications with Hoops who was being investigated for tax violations, Kovel was cited to be in contempt of court and spent a year in jail while his case was under appeal.

 

Kovel eventually won his appeal and in fact, laid the ground work so that we as third party consultants are able to communicate with our attorney- clients without fear of be-ing forced to testify about those communications.

 

But the Kovel decision does not give us carte blanch and it is a common mistake made by some investigators to assume that anything we say or do is going to be protected under this privilege, for this is not the case. As a result of Kovel, the rule of thumb is that the attorney - client privilege does extend to a third party (investigator) if the com-munication is conveyed for the expressed purpose of obtaining advice or discussing strategy on the case at hand or soon to follow.

 

The Kovel decision remained unchallenged and stood for decades until 1999 when the same court in New York took on the issue in US v Ackert, 169F3d 136 (2ndCir. 1999).

 

In this case, Ackert was an investment banker, employed by Goldman Sachs, who had approached a company with an idea which would save the company on it's income taxes. Lawyers working for the company met with Ackert on numerous occasions to discuss his ideas and as a result had given legal advice to the company essentially to accept Ackert's proposals.

 

Ackert was later investigated by the IRS and claimed the Kovel Privilege in order not to testify. The lower court agreed but when the case went up on appeal, the Second Cir-cuit reversed the decision. The decision of the Second Circuit Appellate Court was clear: "That legal privilege is to be extended only for the purpose of third party consul-tant communications which act to translate or interpret communications between the attorney and the client."

 

Ultimately, Ackert's work product was not protected and this is something that profes-sional investigators need to consider when communicating with others.

 

The interpretation of the Second Circuit stands. The work product privilege exists only if the third party is necessary and "nearly indispensable" to the communication between attorney and client This would be the case for much of our communications with attorney clients, but not all of them. Some communications to attorneys can not be construed as being necessary or indispensable so we need to be careful before clicking off an e mail.

 

The work-product privilege is not intended to protect documents or materials prepared in the ordinary course of business and not for litigation. This was the case in Ackert.

 

Numbers of other decisions have been handed down throughout the years, too volu-minous to include in this article, but, to summarize, the courts have furthered the scope of Kovel to protect the attorney work product doctrine and to include communications or materials of third party consultants, if they were "prepared by a party, her agent, attor-ney or consultant in anticipation of litigation." See Calvin Klein Trademark Trust v Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).

 

Basically, the above decision ruled that documents which were in possession of a public relations firm, were prepared for an attorney, pertaining to a specific litigated matter, were protected communications. However, documents prepared by the PR firm in the normal course of publicists' advice are not considered to be protected.

 

Professional investigators, working for an attorney regarding litigation or possible litiga-tion, are considered third party consultants, in the same was as the Public Relations firm in the Calvin Klein Case.

 

In another case out of the Southern District of New York, the lower court ruled in Wel-land v. Trainer that investigator notes, which had been prepared prior to attorney in-volvement in the case were not afforded the status of privilege. On the other hand, notes prepared after attorney involvement were considered protected under work prod-uct privilege. See No. OO CIV.0738 (JSM) 2001 U.S. Dist. LEXIS 15556 (S.D.N.Y. Sept 28, 2001).

 

Regarding the above, Illinois Investigator Robert Hrodey recently posted this pertinent comment onto the National Association of Legal Investigator list serve: "Decisions like that in Welland highlight the wisdom of involving a lawyer in even the earliest stages of a corporate investigation. Waiting until later can forfeit important protections."

 

According to numerous court rulings, simply involving a lawyer may not be enough. Certain steps may be necessary in order to assure that the Work Product Privilege attaches to our efforts.

 

TO DISCOVER OR NOT TO DISCOVER: Steps to take to bullet proof your product.

 

It is generally accepted that any communication which discusses strategy or which is a continuation of a thought expressed by the attorney is privileged. There are steps to take to assure that your material is not discoverable.

 

 

SIDEBAR:

It is important to note that the above measures are steps to be taken to protect your product from discovery. OFTEN the reverse is the desired outcome and an investigator wants his/her reports and investigative findings to be used in legal proceedings and when this is the case, write a detailed formal report knowing that the opposing side will not only see it, but will scrutinize it.

 

If you are asked to submit a formal report, always write it with the realization that you may have to testify and defend your work. A solid, well written report is your best de-fense. Know that it will be picked apart by the other side. It is what we would do.

 

SUMMARY:

The Work Product Doctrine casts a wider tent of protection than the attorney - client pri-vilege. It's purpose is to allow an attorney to prepare for his/her case without fear of the other side knowing what his/her evidence is. Waste Management, Inc., v. International Surplus Lines Insurance Co., 144 Ill2nd 178, 579 NE 2nd 322,329, 161 Ill.Dec. 774(1991), citing Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct.385 (1947)

 

Simply put, fair is fair and the other side is not entitled to take un do advantage of another attorneys production. This would include work performed by his/her profes-sional investigator as well as the attorney him/herself.

 

If you are a legal investigator, conduct your investigation and perform your work on each case under the direction of your attorney- client. It is always best to defer to your attorney- client to decide if your investigative product should be reduced to writing or not. A good rule of thumb is: When in doubt, don't write it out.

 

-- This article was featured in PI Magazine, April 2011 edition --

 

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