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State Rules Governing Attorney-Client Privilege

The body of law governing the attorney-client privilege is comprised of federal and state legislation, court rules, and case law. Below is a sampling of state court decisions decided at least in part based on their own state’s court rules, case law, or legislation.

ARKANSAS: Attempts by both an attorney and his secretary to communicate with the client regarding his pending criminal case were protected by the attorney-client privilege. Rules of Evid., Rule 502(b). Byrd v. State, 326 Ark. 10, 929 S.W.2d 151 (Ark. 1996).

ALABAMA: Where a defendant asserted that his guilty pleas to robbery charges were the product of his defense counsel’s coercion, the absence of the defense counsel’s testimony to rebut the defendant’s testimony could not be excused by any assertion of the attorney-client privilege. Walker v. State, 2001 WL 729190 (Ala.Crim.App., 2001).

ARIZONA: By asserting that its personnel understood the law on stacking coverage for under insured and uninsured motorist claims, the insurer affirmatively injected legal knowledge of its claims managers into the insureds’ bad faith action and thus effectively waived the attorney-client privilege as to any communications between the insurer and its counsel regarding the propriety of the insurer’s policy of denying coverage. State Farm Mut. Auto. Inc. Co. v. Lee, 199 Ariz. 52, 13 P.3d 1169 (Ariz. 2000).

CALIFORNIA: The attorney-client privilege is not limited to litigation-related communications, since the applicable provisions of the state Evidence Code do not use the terms “litigation” or “legal communications” in their description of privileged disclosures but instead specifically refer to “the accomplishment of the purpose” for which the lawyer was consulted. West’s Ann.Cal.Evid.Code §§ 912, 952. STI Outdoor v. Superior Court, 91 Cal.App.4th 334, 109 Cal.Rptr.2d 865 (Cal.App. 2 Dist. 2001).

ILLINOIS: To prevail on an attorney-client privilege claim in a corporate context, a claimant must first show that a statement was made by someone in the corporate control group, meaning that group of employees whose advisory role to top management in a particular area is such that a decision would not normally be made without their advice or opinion and whose opinion, in fact, forms the basis of any final decision by those with actual authority. Hayes v. Burlington Northern and Santa Fe Ry. Co., 323 Ill.App.3d 474, 752 N.E.2d 470, 256 Ill.Dec. 590 (Ill.App. 1 Dist. 2001).

MAINE: Counsel’s inadvertent disclosure of a memorandum to opposing counsel, which summarized a telephone conference between counsel and his client, did not constitute a waiver of the attorney-client privilege, where the document was mistakenly placed in boxes of unprivileged documents that were available to opposing counsel to photocopy and the memorandum in question was labeled “confidential and legally privileged.” Corey v. Norman, Hanson & DeTroy, 742 A.2d 933, 1999 ME 196 (Me. 1999).

MASSACHUSETTS: Hospital personnel were neither the defendant’s nor his attorney’s agents when they conducted a blood-alcohol test on the defendant at the attorney’s request for sole purpose of gathering potentially exculpatory evidence, and thus the state’s grand jury subpoena of the test results did not violate the attorney-client privilege. Commonwealth v. Senior, 433 Mass. 453, 744 N.E.2d 614 (Mass. 2001).

MICHIGAN: A Court of Appeals reviews de novo a decision regarding whether the attorney-client privilege may be asserted. Koster v. June’s Trucking, Inc., 244 Mich.App. 162, 625 N.W.2d 82 (Mich.App. 2000).

MINNESOTA: The presence of the defendant’s wife at a joint meeting in which the defendant, his attorney, and his wife discussed financial aspects of a possible divorce prevented the attorney-client privilege from attaching. State v. Rhodes, 627 N.W.2d 74 (Minn. 2001).

NEW JERSEY: The person asserting the attorneyclient privilege bears the burden to prove it applies to any given communication. Horon Holding Corp. v. McKenzie, 341 N.J.Super. 117, 775 A.2d 111 (N.J.Super.A.D. 2001)

NEW YORK: A client’s intent to commit a crime is not a protected confidence or secret for the purposes of the attorney-client privilege. N.Y.Ct.Rules, § 1200.19. People v. DePallo, 96 N.Y.2d 437, 754 N.E.2d 751, 729 N.Y.S.2d 649 (N.Y. 2001).

NORTH DAKOTA: A communication is confidential, for the purposes of determining the applicability of attorney-client privilege, if it is not intended to be disclosed to persons other than those to whom the disclosure is made during the course of rendering professional legal services or to those reasonably necessary for transmission of the communication during the course of rendering professional legal services. Rules of Evid., Rule 502(a)(5). Farm Credit Bank of St. Paul v. Huether, 454 N.W.2d 710 (N.D. 1990).

OHIO: The attorney-client privilege is not absolute, and thus the mere fact that an attorney-client relationship exists does not raise a presumption of confidentiality of all communications made between the attorney and client. Radovanic v. Cossler, 140 Ohio App.3d 208, 746 N.E.2d 1184 (Ohio App. 8 Dist. 2000).

TEXAS: Physicians who were defending against a malpractice action were not entitled to discover, under fraud exception to attorney-client privilege, material relating to a settlement between the plaintiffs and another defendant, although the physicians alleged that disparate distribution of the settlement proceeds was a sham intended to deprive the physicians of settlement credit, since there was no evidence that the plaintiffs made or intended to make hidden distributions. Vernon’s Ann.Texas Rules Civ.Proc., Rule 192.5(a); Rules of Evid., Rule 503(d)(1). In re Lux, 52 S.W.3d 369 (Tex.App. 2001).

WASHINGTON: The federal constitutional foundation for the attorney-client privilege is found in the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, and the Due Process Clause of the Fourteenth Amendment, as these rights can be protected only if there is candor and free and open discussion between client and counsel. U.S.C.A. Const.Amends. 5, 6, 14. In re Recall of Lakewood City Council Members, 144 Wash.2d 583, 30 P.3d 474 (Wash. 2001).

Inside State Rules Governing Attorney-Client Privilege