Attorney-Client Privilege – Part II: Foundation in National Systems

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“See American Bar Association (“ABA”) Model Rules of Professional Conduct, Rule 1.4 (a) providing that: “[a] lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent… is required by these Rules; (2) reasonably cons…”

In my previous post, I explained why I filed a request for leave to file an amicus brief in Prosecutor v. Bemba Gombo et al. (“Bemba”) at the ICC, and provided the factual context of the case relevant to the issue of attorney-client privilege communications. In Bemba, the Trial Chamber ordered several communications between Counsel, the client, the case-manager, and others to be transmitted to the Office of the Prosecutor (“OTP”) and other parties.((Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-947, Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 15 May 2015, paras. 22, 32, 33, 35-37.)) Thus, several issues surfaced. What is the scope of the attorney-client privilege? What types of communications does it cover? Who does it cover? As this privilege has its foundations in national systems, before addressing the overarching issue of attorney-client privilege before international tribunals and specifically the ICC, a brief discussion of its basic principles in national jurisprudence may be helpful. This post will provide a historical background of the attorney-client privilege, its parameters, and its exceptions in national jurisdictions. The intent is to provide the basic principles with some illustrative examples, as opposed to an extensive exegesis with an exhaustive list of relevant jurisprudence.

Rationale

The purpose of the attorney-client privilege is to encourage full and frank communication between lawyers and their clients. Monroe H. Freedman, an expert and pioneer in the field of legal ethics, eloquently states:

If one recognizes that professional responsibility requires that an advocate have full knowledge of every pertinent fact, it follows that he must seek the truth from his client, not shun it. This means that he will have to dig and pry and cajole, and, even then, he will not be successful unless he can convince the client that full and confidential disclosure to his lawyer will never result in prejudice to the client by any word or action of the lawyer.((Monroe H. Freedman, Professional responsibility of the Criminal Defense Lawyer: Three Hardest Questions, 64 MICH. L. REV. 1469, 1473 (1966)(internal citation omitted).))

Thus, “[t]he lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out.”((Trammel v. U.S., 445 U.S. 40, 51 (1980).)) The client must be able to speak openly to his or her attorney and disclose relevant information that would assist the attorney in providing effective legal assistance. Without the security of the attorney-client privilege, the lawyer could potentially become a medium of confession. “The criminal defendant’s self-incrimination rights become completely nugatory if compulsory disclosure can be exacted through his attorney.”((People v. Belge, 372 N.Y.S.2d 798, 802 (Onondaga County Ct. 1975), adopting language from an amicus curiae brief by the National Association of Criminal Defense Lawyers.)) As the UK Bar Standards Board has indicated:

The duty of confidentiality (CD6) is central to the administration of justice. Clients who put their confidence in their legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will stay confidential. In normal circumstances, this information will be privileged and not disclosed to a court.((UK Bar Standards Board, Code of Conduct, gC42 (2015)(italics in original).))

The Attorney-Client Privilege in Common Law

Foundations

The attorney-client privilege is the oldest common law privilege for confidential communications, dating back to the Elizabethan era.((J. H. WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW §2290 (1905) (“WIGMORE”) (available in microform at https://archive.org/stream/cihm_73414#page/n27/mode/2up/search/privilege.)) Though the underlying rationale for the privilege has changed over time,((Id.)) it is well recognized today that the attorney-client privilege is intended to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”((Upjohn Co. et al. v. U.S., 449 U.S. 383, 389 (1981), a seminal United States (“US”) Supreme Court case addressing the scope of the attorney-client privilege and work product doctrine in the corporate context, though nonetheless relevant in criminal cases.)) In common law, the “attorney-client privilege,” otherwise known as the “legal professional privilege,” prohibits a tribunal from compelling the disclosure of confidential communications between an attorney and a client.((WIGMORE, §2290.))

Parameters

American Jurist and expert in evidence John Henry Wigmore is accredited for providing the classic definition of the attorney-client privilege which applies:
(1)Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.((WIGMORE §2292. See also U.S. v. Kovel, 296 F.2d 918, 921 (2d. Cir. 1961); Solosky v. The Queen, [1980] 1 S.C.R. 821, 835 (Canada), citing Wigmore for the definition of attorney-client privilege.))

Wigmore’s formulation of the attorney-client privilege can be distilled to three main elements:

1. Confidential communications
2. Between a person and his or her legal counsel
3. Made in the context of the professional relationship

1. Confidential Communications:

Attorneys have an ethical duty to communicate with their clients((See American Bar Association (“ABA”) Model Rules of Professional Conduct, Rule 1.4 (a) providing that:

“[a] lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent… is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”

Similarly, the United Kingdom (“UK”) Bar Standards Board, Code of Conduct, gC38(2) provides that “a competent standard of work and services also includes…seeking to advise your client, in terms they can understand” (emphasis in original) and to keep those communications confidential.((See UK Bar Standards Board, gC42; see also ABA Model Rules of Professional Conduct, Rule 1.6(a): “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted….”)) Counsel and client may communicate in a variety of ways, such as orally, in writing, or electronically by e-mail.

In order to be confidential, communications between the attorney and client must be made by means not intended to be disclosed to outsiders. Logical. The privilege would be unnecessary if the client willingly shares the information or makes it available to others who are not part of his or her legal team. Section 952 of the California Evidence Code serves as an excellent example in defining a “confidential communication”:

so far as the client is aware, [the client] discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted….

The attorney-client privilege is not destroyed when communications are shared between Counsel and his or her support staff, since the privilege protects communications to the lawyer’s agents in rendering his or her services.((WIGMORE, §2301.)) In order for a legal team to function, lawyers must be able to relay confidential client communications to members of the legal team without the privilege being removed. According to the ABA:

Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation.…Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.((ABA Comment 5 to Model Rules of Professional Conduct, Rule 1.6.))

In the US, the presence of other third parties will not destroy privilege if the third party is intended to further the attorney-client relationship. For example, in U.S. v. Kovel, a former Internal Revenue Service agent was employed as an accountant with a law firm specializing in tax law.((U.S. v. Kovel, 296 F.2d 918, 919 (2d Cir. 1961).)) A grand jury in the Southern District of New York subpoenaed the accountant in relation to alleged federal tax violations by a client of the law firm.((Id.)) The law firm advised that the accountant could not disclose any communications by the client or the result of any work done for the client, unless the client consented.((Id.)) The government contended that the attorney-client privilege did not apply to someone who was not an attorney.((Id.))

During the grand jury hearing, the Assistant US Attorney informed the Judge that Kovel had refused to answer “several questions on the grounds of attorney-client privilege.”((Id.)) After verifying that Kovel was not a lawyer, the Judge directed him to answer, saying “[y]ou have no privilege as such.”((Id., at 920.)) The following day, Kovel persisted in refusing to answer questions. The Court held him in contempt of court, sentenced him to one year of imprisonment, ordered immediate containment, and denied bail.((Id.))

The U.S. Second Circuit Court of Appeals held the presence of an accountant while the client is relating a complicated tax matter to his lawyer, should not destroy the attorney-client privilege. The Second Circuit Court of Appeals explained that the accountant’s presence was “necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.”((Id., at 922.)) The Court elaborated that:

By the same token, if the lawyer has directed the client, either in the specific case or generally, to tell his story in the first instance to an accountant engaged by the lawyer, who is then to interpret it so that the lawyer may better give legal advice, communications by the client reasonably related to that purpose ought fall within the privilege; there can be no more virtue in requiring the lawyer to sit by while the client pursues these possibly tedious preliminary conversations with the accountant than in insisting on the lawyer’s physical presence while the client dictates a statement to the lawyer’s secretary or in [sic] interviewed by a clerk not yet admitted to practice. What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only accounting service … or if the advice sought is the accountant’s rather than the lawyer’s, no privilege exists.((Id. (internal citations omitted).))

In the UK, privileged documents may still be protected by the attorney-client privilege even though a third party was present during a meeting between attorney and client, or received copies of documents. In Gotha City v. Sotheby’s and Another, the defendant purchased a 17th century painting.((Gotha City v. Sotheby’s and Another, [1998] 1 W.L.R. 114, 115.)) The plaintiff claimed to be the owner of the painting and made an application for discovery and inspection of copies of letters, opinions or other documents provided to the accused by its legal advisors.((Id.)) The plaintiff argued that privilege had been lost because the documents and copies of minutes of meetings were disclosed to a third party.((Id.)) The Court of Appeal held that privilege would remain intact even though the documents were received by a third party because there was an expectation that the third party would keep those communications in confidence.((Id., at 121-122.))

2. Between a person and his or her legal counsel

For the attorney-client privilege to exist, there must be an attorney-client relationship. Generally an attorney-client relationship arises when the attorney and client agree that the attorney will render legal services for the client, or a court appoints the lawyer to represent a client.((See UK Solicitors Regulation Authority Code of Conduct (2011), Chapter 1: “Your relationship with your client is a contractual one which carries with it legal, as well as conduct, obligations.” See also Pennsylvania Rules of Professional Conduct as amended 1 July 2006, preamble §16: “Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. … Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.”))

A prospective client’s unsolicited information could raise difficulties, depending on the circumstances. Let’s say, for instance, that a prospective client leaves a voice-mail with an attorney seeking the attorney’s advice and in so doing discloses confidential facts. The ABA has considered a similar scenario in opining on conflicts of interest in representation concluding (instructive but non-binding) that the attorney is obligated “to protect information imparted by a would-be client seeking to engage the lawyer’s services even though no legal services are performed and the representation is declined.”((ABA Formal Opinion 90-358 (13 September 1990).))

This is consistent with how US Courts view preliminary communications made to a lawyer in seeking legal representation, since there is a reasonable expectation of confidentiality. For example, in People v. Gardner, the accused wrote a letter to the public defender confessing to the commission of a murder. The letter was seized from the accused’s jail cell by a detective, who then confronted the accused with the letter. The accused protested that the letter was confidential and intended for his attorney. The Court of Appeals of California held that, although the letter was undelivered, it was protected by the attorney-client privilege. The Court reasoned that “‘[t]he lawyer-client privilege is, indeed, so extensive that where a person seeks the assistance of an attorney with a view to employing him professionally, any information acquired by the attorney is privileged whether or not actual employment results.’”((People v. Gardner, 106 Cal. App. 3d 882, 886-887 (Cal. 1980), quoting People v. Canfield, 12 Cal. 3d 699, 705 (Cal. 1974).)) Otherwise, as the California 1st District Court of Appeal found in Estate of Dupont, “no person could ever safely consult an attorney for the first time with a view to his employment if the privilege depended on the chance of whether the attorney after hearing his statement of the facts decided to accept the employment or decline it.”((Estate of Dupont, 140 P.2d 866, 873 (Cal. 1943).))

3. Made in the context of professional relationship

To benefit from the privilege, the communication must be made for the purpose of giving or getting legal advice, or in regard to prospective or pending legal matters. The privilege does not apply when the attorney is acting in some other capacity or for some other purpose.

For example, in Olender v. U.S., the appellant hired a certified public accountant and licensed attorney, Charles R. Ringo, to prepare a net worth statement for investigation by the Internal Revenue Service of the appellant’s tax matters. The government sought to call Ringo as a witness. The defence objected on the basis of the attorney-client privilege. The Ninth Circuit Court of Appeal found that the communications were not covered by privilege because Ringo was hired for accounting purposes rather than for legal advice. The Court held that the attorney-client privilege is “limited to communications made in the course of seeking legal advice from a professional legal adviser in his capacity as such. Thus, communications to an attorney in the course of seeking business rather than legal advice are not privileged.”((Olender v. U.S., 210 F.2d 795, 805-806 (9th Cir. 1954)(internal citations omitted).))

Effect of the attorney-client privilege

The effect of the privilege is to prevent compulsion of protected communications. It is an exclusionary rule of evidence. It differs from the ethical duty of confidentiality embodied in the rules of ethics, which prevents the attorney from voluntarily disclosing or misusing the client’s confidential information. The ethical duty applies in every context where the attorney-client privilege does not apply, such as confidential information coming from sources other than the client. The ABA distinguishes these mechanisms for protecting confidentiality as follows:

The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.((ABA Comment 3 to Model Rule of Professional Conduct 1.6.))

Likewise, the UK Bar Standards Board comments that “[i]n normal circumstances, this [confidential] information will be privileged and not disclosed to a court.” ((UK Bar Standards Board, gC42 (2014)(italics in original).))

Work product doctrine

In the preparation of a case, attorneys must often draft legal documents, internal reports, and other memoranda, which may contain confidential client communications. These documents, though not necessarily attorney-client communications, are protected under the work product doctrine and are not subject to disclosure.

In the US, the work product doctrine was developed in Hickman v. Taylor.((Hickman v. Taylor, 329 U.S. 495 (1947).)) In Hickman, two tugboat owners fearing litigation hired an attorney who interviewed several of the surviving crewmembers of an accident. After filing suit against the tugboat owner, a representative of one of the victims filed an interrogatory requesting the content of the interviews conducted by the tugboat owners’ attorney. The District Court for the Eastern District of Pennsylvania held that the requested matters were not privileged.((Id., at 409.)) The Third Circuit Court of Appeals reversed holding that the information sought was part of the lawyer’s “work product” and hence privileged from discovery under the Federal Rules of Civil Procedure. The Supreme Court granted certiorari for this case because the lower courts diverged greatly on this rule.((Id., at 500.))

The US Supreme Court held that the protective cloak of the attorney-client privilege does not extend to information an attorney secures from a witness while acting for his client in anticipation of litigation. Similarly, it found that privilege does not cover memoranda, briefs, communications, or other writings prepared by Counsel, or Counsel’s mental impressions, conclusions, opinions, or other legal theories.((Id., at 508.)) However, the Supreme Court found that these communications are not subject to disclosure as part of a work product doctrine. In developing this doctrine, the Supreme Court reasoned that:

In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways – aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’((Id., at 510-11.))

The key element in determining whether a communication constitutes “work product” is whether the material is prepared in anticipation for litigation.((Id., at 511.))

In the UK, there are two distinct privileges for communications between an attorney and client and documents prepared during the course of the representation. Legal advice privilege protects confidential communications between a client and attorney for the purpose of receiving or giving legal advice. Litigation privilege covers documents brought into being for the purpose of litigation.((Three Rivers District Council v. Governor and Company of the Bank of England (No. 6) [2004] UKHL 48, para. 10.)) Similar to US jurisprudence, in order to be covered by privilege, the documents must be prepared in anticipation of an adversarial proceeding. In in re L, Lord Jauncey of Tullichettle described litigation privilege as “essentially a creature of adversarial proceedings” and held that the privilege could not be claimed in order to protect from disclosure a report prepared for use in non-adversarial proceeding.”((In re L, [1997] AC 16, 26.))

Pre-existing documents and other material

The protection of privilege extends only to communications, and not to facts. A client cannot conceal a fact merely by revealing it his or her lawyer. An interesting example involves an alleged kidnapping where the accused sought to prevent the State from admitting evidence of a car rental contract.((State v. Young, 297 P.3d 1194, 2013 Kan. App. Unpub. LEXIS 270 (Kan. 2013).))

In State v. Young, the accused claimed that the car rental contract contained privileged and confidential information shared by the accused with his former attorney. At some point during the representation, with the accused’s consent, a new lawyer took over the case. The accused acknowledged that he and the new attorney discussed the car rental contract being used in his defence but denied giving the new attorney permission to give it to the State or to use the contract at trial. During discovery, the new lawyer turned the contract over to the State. The accused was convicted.

On appeal, the accused argued that the car rental contract was a confidential communication between him and his attorney and that the new attorney disclosed it without his authorization, rendering it inadmissible at trial. The Appellate Court rejected the accused’s claim, finding that the accused “confus[ed] the attorney-client privilege with the various disciplinary rules concerning an attorney’s ethical duties with respect to client confidences. The two rules, while susceptible to confusion, are separate and distinct.”((Id., at 17.)) The car rental contract was not protected by any privilege before the accused provided it to his attorney. While the accused’s identity as the individual who provided the contract to the attorney, as well as any communication between the accused and his lawyer were deemed protected from disclosure by the attorney-client privilege, “the car rental contract itself was not magically transformed from a nonprivileged document to a privileged document just because [the accused] provided it to [the attorney].((Id., at 21.))

Waiver of privilege

The decision to waive attorney-client privilege belongs to the client. Rule 1.6(a) of the ABA Model Rules of Professional Conduct provides that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to carry out the representation or the disclosure is permitted by Rule 1.6(b). Rule 1.6(b) allows the attorney to reveal confidential communications in order to:

(1) prevent reasonably certain death or substantial bodily harm;
(2) prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) secure legal advice about the lawyer’s compliance with these Rules;
(5) establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) comply with other law or a court order; or
(7) detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

The UK Bar Standards Board Guidance on the Code of Conduct states that “your duty to the court does not permit or require you to disclose confidential information which you have obtained in the course of your instructions and which your client has not authorised you to disclose to the court.”((UK Bar Standards Board, gC8 (italics in original).)) However, lawyers must not knowingly mislead the court or to permit the court to be misled. There may be situations where you have obligations under both these rules.((Id.)) The client can waive the privilege by revealing the communication to third-parties.((See U.S. v. Tyerman, 701 F.3d 552 (8th Cir. 2012) where the defendant’s intentional disclosure of a gun’s location to the district attorney through his defence counsel during plea negotiations implicitly waived privilege with respect to the communications about the gun’s location.))

The client can also waive the privilege if he or she attacks the lawyer. An exquisite example is Agnew v. Maryland. Maryland taxpayers sued Spiro T. Agnew, former US Vice President, to recover certain payments allegedly made to him in connection with State Roads Commission contracts entered into while he served as Governor of Maryland.((Agnew v. Maryland, 446 A.2d 425 (Md. 1982).)) With the typical hubris of a disgraced politician, Agnew published a memoir, Go Quietly … or else, undoubtedly to set the record straight (just look at the title). On the first day of trial, the trial judge ruled that Agnew in his book had waived the attorney-client privilege in regard to conversations with his attorney dealing with campaign contributions and alleged kickbacks, and that the attorney’s testimony was compellable.((Id., at 432.)) The Maryland Court of Special Appeals held that the intent to waive “must be expressed, ‘either by word or act…,’ but once disclosed, the confidential matter is ‘no longer secret, and the privilege which might be claimed disappears.’”((Id., at 444, quoting Harrison v. State, 276 Md. 122, 137-38 (1975).)) Agnew could not assert privilege because:

It is difficult to conceive of a disclosure more public than this well-known volume which the author himself described as a ‘detailed revisitation’ of the period prior to his resignation as vice president, and which recounts in haec verba the conversations between Mr. White and Mr. Agnew regarding Mr. Wolff and Mr. Matz. The purpose of the book, according to Mr. Agnew, was to show his ‘innocence of the allegations . . . which compelled’ him to resign. Whether or not the work succeeds in doing that, Mr. Agnew cannot now assert an attorney-client privilege over matters that ‘were essentially revealed to the world[.]’((Id., at 445.))

While the intended or purposeful disclosure of attorney-client communications (such as by Agnew) is not protected as privileged, the inadvertent disclosure of communications will not necessarily destroy the privilege. In certain circumstances where the client is not at fault, it might be considered as excessively harsh to deprive a client of the privilege of confidentiality. For example, in Transamerica Computer Co. v. International Business Machines, as part of its pre-trial discovery, Transamerica Computer Company, Inc. (“Transamerica”) requested that International Business Machines (“IBM”) produce numerous documents.((Transamerica Computer Co. v. International Business Machines Co., 573 F.2d 646, 647 (9th Cir. 1978).)) IBM asserted the attorney-client privilege in relation to documents it believed to be protected. Transamerica took the position that even if the documents were privileged when originally prepared, IBM waived its right to rely upon the privilege as it had produced the very same documents to Control Data Corporation in a prior antitrust action. The 9th Circuit Court of Appeal held that IBM’s inadvertent production of privileged documents did not constitute a waiver of the privilege, if that production was made without having an adequate opportunity to claim the privilege.((Id., at 651.)) It held that the disclosure of confidential material constitutes a waiver of the attorney-client privilege only if it is voluntary and not directly or indirectly compelled.((Id.))

Exceptions to the Attorney-Client Privilege

1. Crime-Fraud Exception

Generally, the crime-fraud exception applies when the client intends to perpetrate a crime and the communications between the attorney and the client were in furtherance of that crime. Queen v. Cox and Railton (UK) is considered the earliest case to fully apply the crime-fraud exception. The rationale for implementing the crime-fraud exception in that case was that:

In order that the rule [of privilege] may apply there must be both professional confidence and professional employment, but if the client has a criminal object in view of his communications with his [lawyer] one of these elements must necessarily be absent. The client must either conspire with his [lawyer] or deceive him. If his criminal object is avowed, the client does not consult his adviser professionally, because it cannot be the [lawyer’s] business to further any criminal object. If the client does not avow his object he reposes no confidence, for the state of facts, which is the foundation of the supposed confidence, does not exist.((Queen v. Cox and Railton, 14 Q.B.D. 153, 168 (1884).))

The UK case of O’Rourke v. Darbishire is generally followed in the common law system for defining the scope of the crime-fraud exception. In O’Rourke, the House of Lords held that to drive the privilege away, there must be “something to give colour to the charge … prima facie evidence” that a crime or fraud has some foundation in fact.((O’Rourke v. Darbishire, [1920] A.C. 581, 604.)) This crime-fraud in the UK can encompass both materials covered by litigation privilege, and legal advice privilege. In Kuwait Airways Corporation v. Iraqi Airways Company, Kuwait Airways Corporation (“KAC”) sought an order compelling the production of documents Iraqi Airways Company (“IAC”) were privileged. KAC contended that IAC was involved in fraud and perjury by having forged some documents and deliberately sealing others.((Kuwait Airways Corporation v. Iraqi Airways Company, [2005] EWHC 367, paras. 1-3.)) The High Court of Justice (commercial court), ordered the production of several documents, finding that they fell into the crime-fraud exception.((Id., para. 15.))

On appeal, Longmore LJ held that:

1. the fraud exception can apply where there is a claim to litigation privilege as much as where there is a claim to legal advice privilege;
2. nevertheless it can only be used in cases in which the issue of fraud is one of the issues in the action where there is a strong (I would myself use the words “very strong”) prima facie case of fraud as there was in Dubai Aluminium v Al−Alawi and there was not in Chandler v Church;
3. where the issue of fraud is not one of the issues in the action, a prima facie case of fraud may be enough as in Hallinan.((Kuwait Airways Corporation v. Iraqi Airways Company, [2005] EWCA Civ 286.))

US jurisprudence has followed O’Rourke v. Darbishire. In Clark, a juror was found guilty of criminal intent to obstruct justice by knowingly giving misleading and false answers to questions affecting her qualifications as a juror.((Clark v. U.S.,289 U.S. 1, 6 (1933).)) Clark concerned the privilege afforded to the juror. Though Clark’s discussion of attorney-client privilege is dictum, it is frequently cited by US courts for its articulation of the crime-fraud exception.((U.S. v. Zolin, 491 U.S. 554, 563 (1989).)) In Clark, the US Supreme Court stated that: “the privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”((Clark v. U.S., 289 U.S. 1, 15 (1933).)) Citing O’Rourke, the Supreme Court stated that “to drive the privilege away, there must be ‘something to give colour to the charge;’ there must be ‘prima facie evidence that it has some foundation in fact’.”((Id., at 15.))

I will discuss the crime-fraud exception in the fourth posting in this series on attorney-client privilege relevant to the issues raised in the leave to file an amicus brief in Bemba.

2. Breach of duty between a client and attorney

The “breach of duty” exception applies where there is some dispute over the lawyer’s conduct. When the client has a claim against the attorney, the client can always waive the attorney-client privilege. By contrast, this rule is a self-defence mechanism for the lawyer when the client attacks the lawyer. It allows the lawyer to defend himself or herself even if it means revealing confidential communications relating to the representation of the client.
The ABA Model Rule of Professional Conduct, Rule 1.6(b)(5) states that a lawyer may reveal confidential communications relating to the representation of the client to:

• establish a claim or defence on behalf of the lawyer in a controversy between the lawyer and the client;
• establish a defence to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or
• to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Effectively, when a client accuses an attorney of incompetence or ineffective assistance or brings a civil or disciplinary proceeding against his or her attorney, the client impliedly waives any privilege in respect of all matters which are relevant to the suit or disciplinary matter, especially where the disclosure of privileged matters is required to enable the attorney to effectively respond.

Professional Secrecy in Europe / Civil Law Systems

In continental Europe, confidential attorney-client communications are protected from disclosure by the various civil codes. Generally, the lawyer’s duty of confidentiality in European civil law systems is commonly referred to as “professional secrecy,” and obligates the lawyer to maintain the confidentiality of information disclosed by a client in the context of the attorney-client relationship.

France

In France, Article 66-5 of Law No. 71-1130 of 31 December 1971 on the reform of certain judiciary and legal professions provides that:

In all areas, whether with regard to advice or in the matter of defense, written opinions sent by a lawyer to his/her client or intended for the latter, correspondence between a client and a lawyer, between a lawyer and other lawyers with the exception, for the latter, of correspondence marked “official”, meeting notes and generally all documents held in a file are covered by professional secrecy. …((Law No. 71-1130 of 31 December 1971 on the reform of certain judiciary and legal professions, consolidated modified version of 27 September 2015, Art. 66-5, unofficial translation by author.))

Under Article 2.1 of the French National Internal Regulations of the Legal Profession (“National Internal Regulations”), the lawyer is a necessary confidant of the client.((Decision of 12 July 2007 on the adoption of the National Internal Regulations of the Legal Profession (Décision du 12 juillet 2007 portant adoption du règlement intérieur national (RIN) de la profession d’avocat (Art. 21-1 de la loi du 31 décembre 1971 modifiée)(unofficial translation).)) This duty of professional secrecy is unlimited in time, and covers all confidential information given to the lawyer for the purpose of advice or defence of a client.((Id.)) The lawyer must not disclose any information that would violate professional secrecy except when it is strictly necessary for the lawyer’s defence before a court or when the disclosure is authorized by law.((Id.)) Under Article 2.2 professional secrecy covers all matters “in the domain of the advice or defence, and whatever the media, material or immaterial.” This includes consultations between the lawyer and client, and correspondence exchanged between the lawyer and client or the between the lawyer and his or her colleagues. Article 2.3 of the National Internal Regulations state that the lawyer must ensure that his or her staff or anyone engaged in his or her legal business respects professional secrecy. The lawyer will be held responsible for breach of secrecy made by his or her staff. Violation of this duty is a criminal offense.((French Criminal Code, 22 July 1992, consolidated version of 27 July 2015, Art. 226-13.)) Article 226-14 allows an exception for where disclosure is authorized by law.

In contrast to the common law attorney-client privilege, the French duty of professional secrecy belongs to the lawyer and not the client. Article 109-1 of the French Code of Criminal Procedure states that: “Any person summoned to be heard in the capacity of a witness is obliged to appear, swear an oath, and to make a statement, subject to the provisions of articles 226-13 and 226-14 of the Criminal Code.”((French Code of Criminal Procedure, 2 March 1959, consolidated version of 1 September 2015, Art. 109-1. Official English translation available at http://www.legifrance.gouv.fr/content/download/1958/13719/version/3/file/Code_34.pdf.))

Similar to the common law attorney-client privilege, the duty of professional secrecy cannot protect the client if he or she attacks the lawyer. It also does not cover communications when the lawyer is involved in a crime or fraud. The criminal division of the Cour de cassation has held that: “the professional secrecy obligation incumbent on a lawyer cannot prevent such lawyer, when defending him/herself against an accusation resulting from the disclosure by a client of correspondence exchanged between them, from producing other items of this same correspondence for use in such defence,”((Cour de cassation, criminal chamber, order of 29 May 1989, Bull. crim. No 218 (unofficial translation).)) The Cour de cassation also has held that documents may be seized if they “provide evidence of a lawyer’s involvement in an offense.”((Cour de cassation, criminal chamber, order of 12 March 1993, Bull. crim. No 112 (unofficial translation).))

Belgium

In Belgium the breach of “professional confidentiality” also constitutes a criminal offense. Article 458 of the Belgian Criminal Code provides that:

Doctors, surgeons, health workers, pharmacists, midwives and all other persons custodians, because of their status or profession, of secrets entrusted to them, who, except if they are called to testify in court (or before a parliamentary commission of inquiry) or if they are required by law to communicate these secrets, revealed them, will be sentenced from eight days to six months imprisonment and a fine of one hundred [euros] up to five hundred [euros]. ].((Criminal Code of the Kingdom of Belgium, 8 June 1867, updated 30 March 2010 (unofficial translation).))

The Netherlands

In the Netherlands, Rule 1.2 of the Rules of Conduct of Advocates states that:

Advocates are first and foremost their clients’ counsel. Advocates can only perform their task properly if the client gives them all the information that is relevant to the evaluation and handling of the case. This may only be demanded of clients if they can do so without being exposed to any risk. As a consequence, advocates must exercise the greatest possible care in observing secrecy and in making use of their advocate-client privilege.((Rules of Conduct of Advocates (1992). Official English translation available at http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/Netherlands_EN_Code_1_1236161752.pdf.))

Specifically, Rule 6.1 of the Rules of Conduct of Advocates provides that lawyers must observe professional secrecy and not divulge the details of the cases they are handling, the identity of their clients, or the nature and extent of their interests. Rule 6.2 states that the lawyer may divulge certain information if the lawyer believes that he or she must make knowledge public in order to carry out tasks as lawyer, the client consents, and the decision is compatible with sound professional practice. Rule 6.3 states that lawyers must ensure that staff members and third party agents observe professional secrecy. Rule 6.4 provides that the obligation to protect the client’s secrecy continues after the attorney-client relationship is terminated. Rule 6.5 provides that “[i]f advocates have undertaken to observe secrecy, or if this secrecy arises from the nature of their relationship with any third party, they shall also observe this secrecy vis-à-vis their clients.” Section 272 of the Dutch Criminal Code provides that intentional violation of the duty of secrecy is a criminal offense.

In the Netherlands, the privilege belongs to the lawyer and not the client. Section 218 of the Dutch Code of Criminal Procedure provides that “[t]hose persons who have a duty of secrecy by reason of their position, profession or office may also assert privilege when called to testify or answer certain questions, but only in regard of information entrusted to them in their aforementioned capacity.” However, a reading of Section 218 together with Rule 6 of the Rules of Conduct indicates that it’s not a discretionary matter for the lawyer. The lawyer has an obligation to keep his client’s information secret, so must assert privilege when summoned to testify. To not assert privilege would be a violation of his obligations to his or her client.

Similar to the common law work product doctrine, Article 98(1) of the Code of Criminal Procedure provides that the lawyer may assert privilege over letters or documents. Article 98(2) provides an exception to this privilege where the letters or documents are the “subject of an offence or served to commit an offence.”

The Dutch Supreme Court has held that the right of professional privilege is based on the principle that an individual should freely consult his or her lawyer without fear that confidential information will be disclosed.((Supreme Court, 1 March 1985, NJ 1986, 173 (unofficial translation) cited in the Supreme Court Decision from 24 April 2012, 10/04774, para. 2.4, available at http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:PHR:2012:BV3426.)) The Supreme Court held that this principle prevails over society’s interest in establishing the truth.

Germany

In Germany, Article 43(a)(2) of the Federal Lawyer’s Act provides that lawyers have a duty to observe professional secrecy, which includes everything that has become known to the lawyer in professional practice. This duty does not apply to facts that are obvious or that do not need to be kept secret from the point of view of their significance. Rule 2(2) of the German Rules of Professional Practice of the Federal Bar provides that this duty continues after the lawyer ceases to act for a client. Rule 2(3) provides that the duty of confidentiality does not apply if the Rules of Professional Practice or other legislation provides for exceptions, or if the enforcement of or defense against claims arising from a case, or the defense of the lawyer’s own interests require the disclosure of the information. Rule 2(4) provides that the lawyer must ensure that his or her staff or anyone participating in his or her professional activity observes the duty of confidentiality.

As with other civil law jurisdictions, in Germany, the attorney-client privilege belongs to the lawyer. The German Code of Criminal Procedure gives defence counsel for an accused the right to refuse to testify in relation to information entrusted to them, or that became known to them, in the context of the professional relationship.((Code of Criminal Procedure in the version published on 7 April 1987 (Federal Law Gazette [Bundesgesetzblatt] Part I p. 1074, 1319), as most recently amended by Article 3 of the Act of 23 April 2014 (Federal Law Gazette Part I p. 410), Section 53.1.2.)) The Code of Criminal Procedure specifies that lawyers may not refuse to testify “if they have been released from their obligation of secrecy.”((Id., Section 53.2.))

Similarly, under Section 97 of the Code of Criminal Procedure, written correspondence between the client and lawyer, notes, and other documents are not subject to seizure.

European Human Rights Law

The European Convention on Human Rights (“ECHR”) does not explicitly refer to professional secrecy or privilege for lawyers. However, Article 6 of the ECHR guarantees the right to a fair trial. Specifically, Article 6(3) provides that anyone charged with a criminal offense has the right to adequate time and facilities for the preparation of a defence, and the right to defend himself or herself in person through legal assistance of his own choosing.

In Öcalan v. Turkey, the European Court of Human Rights (“ECtHR”) emphasized that the right to freely communicate with counsel is part of the basic requirements of a fair trial under Article 6(3). In Öcalan, Abdullah Öcalan, leader of the Workers’ Party of Kurdistan (“PKK”)((Öcalan v. Turkey, ECtHR App. No. 46221/99, Judgment, 12 May 2005, para. 13.)) was held in custody by Turkish security forces on terrorism charges.((Id., para. 18.)) Öcalan’s first visit with his lawyers was supervised by members of the security forces and a judge, who were present in the same room where the visit took place.((Id., para. 132.)) A record of the visit was sent to the National Security Court. Subsequent meetings between Öcalan and his lawyer also were supervised by security officers, even though the officers were not in the same room where the meetings took place.((Id.)) The Turkish government contended that supervision was necessary to ensure Öcalan’s security.((Id., para. 133.)) The ECtHR held that Turkey violated Öcalan’s fair trial rights under Article 6 of the ECHR by making it impossible for him to confer with his lawyers confidentially.((Id.))

It held that the right to communicate with one’s legal representative in confidence is part of the basic requirements of a fair trial in a democratic society. The Court reasoned that:

If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective. The importance to the rights of the defence of ensuring confidentiality in meetings between the accused and his lawyers has been affirmed in various international instruments, including European instruments.”((Id. (internal citations omitted).))

The ECtHR found that the inevitable consequence of the restricted meetings between Öcalan and his attorney was to prevent Öcalan from communicating openly with his lawyers in the preparation of his defence and asking him questions that would be important to his defence.((Id.)) It observed that Öcalan had made statements by the time he conferred with his lawyer and later during hearings before the National Security Court. The ECtHR considered that in order for Öcalan’s defence to be effective, it was “essential that those statements be consistent.”((Id.)) Accordingly, the ECtHR considered that it was necessary for him to be able to speak with his lawyers out of the hearing of third parties.((Id.))

Conclusion

The confidentiality of attorney-client communications is fundamental to a fair trial. The client must feel secure that his or her highly sensitive information will not fall into the wrong hands. Lawyers should be aware of the parameters and exceptions to attorney-client privilege in order to most effectively advise his or her clients. Domestic courts have much experience in applying these principles. Thus, when faced with an issue of attorney-client privilege, domestic examples are highly instructive.

Not all communications between the lawyer and client are covered by privilege or professional secrecy in domestic law. Essentially, to be protected by the cloak of privilege or professional secrecy, communications must be confidential, made between a person and his or her legal counsel, and made in the context of the professional relationship.
Similarly, the attorney-client privilege or professional secrecy is not absolute. In common law, the client can waive the privilege by voluntarily disclosing the communications to others. It appears that in both common and civil law, communications in furtherance of a crime or fraud also are not protected, and the attorney can defend himself or herself by revealing confidential communications when attacked by the client.


The next post in this series will discuss the existing international jurisprudence on the attorney-client privilege, its definition, application, and exceptions.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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