The lowdown on privileges

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

Litigation.)

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.