The lowdown on privileges
- By Carl Peckinpaugh
- Jun 12, 2000
The attorney-client communication privilege is one of the central tenets
of the American legal system. The privilege protects from disclosure to
others almost all communications between a person and that person's attorney.
The purpose of the privilege is to encourage "full and frank communication
between attorneys and their clients," with the ultimate goal of promoting
the "broader public interests in the observance of law and administration
of justice." (See Upjohn Co. v. United States.)
Underlying the privilege is an assumption that clients would not be as forthcoming
with their attorneys if they knew that the substance of those communications
might be revealed to others.
However, the privilege will be waived if the client divulges the information
to a third party. Furthermore, when the client is a company, almost anyone
with authority to bind the company can waive the privilege.
Moreover, in most cases, a disclosure of privileged information will
result in a complete loss of the privilege for all other persons in all
forums. Once the horse is out of the barn, it won't be put back. But, in
Diversified Industries Inc. v. Meredith, the 8th U.S. Circuit Court of Appeals
created an exception to the rule. According to the court, when cooperating
with a government investigation, a client may reveal privileged communications
to the government's investigating agency without jeopardizing his or her
ability to invoke the privilege for the same information against other entities.
This has become known as the "selective waiver doctrine."
However, almost every other court has rejected the selective waiver
doctrine. According to these courts, any voluntary disclosure of privileged
information waives the privilege for all purposes and all parties in all
forums. (See, for example, Columbia/HCA Healthcare Corp. Billing Practices
Another privilege that is closely associated with the attorney-client
privilege is the attorney-work product privilege. The work product privilege
protects from disclosure any documents prepared in anticipation of litigation
by or for the attorney. The purpose of the work product privilege is to
help the attorney analyze the evidence and prepare a litigation strategy
without undue interference. (See Hickman v. Taylor.)
Generally, the work product privilege can be waived in the same way as the
attorney-client communication privilege. However, many courts will accord
greater protection to the work product privilege. For this reason, some
courts have accepted the selective waiver doctrine for the work product
privilege even while rejecting it for the attorney-client communication
privilege. (See, for example, Permian Corp. v. United States.)
Because there is a difference of opinion among the courts, any company involved
in a government investigation should analyze which jurisdiction's views
will apply before it discloses any privileged information to the government.
—Peckinpaugh is corporate counsel for DynCorp, Reston, Va.