Home / Summaries / 2) WPD, PDC, ACP, and other basic duties / acp-information-legal

Overview of WPD, PDC, and ACP

Q: When is the ACP implicated?

The ACP is an evidentiary objection . The privilege is a creature of evidence law. If there is no request for the information or advice, the aCP is not implicated.

29 important questions on Overview of WPD, PDC, and ACP

Note on PDC - Divergent State Rules

There is probably more variation in state confidentiality rules than in any other aspect of the law governing lawyers

Protected by ACP, PDC, or WPD? L's recollection of accounts given by 3rd party witnesses

ACP - no. Only covers communications between L + C.
PDC - Yes. information relating to the representation of a client.
WPD - Maybe. See below.

V1 - FRCP 26(a)(3). L's recollection is not protected by WPD b/c it is not embodied in a document or other tangible form (i.e., computer file).

V2 - Common Law WPD (Hickman, US 1947). Requiring a L to report on an oral statement by a witness made to L tends to reveal L's mental processes and is therefore covered by WPD, even though L's recollection is not embodied in a document.

ACP Coverage: communications between L and C that are mixed business + legal advice? [2 views]

V1. Some Its apply the ACP to mixed legal/business advice if L is an employee of a corporate-C and essentially wears "two hates" as a legal and business advisor.

V2. Other Its take a strict approach and apply ACP only to "pure" legal advice.

ACP + Prospective Clients

If a prospective client disclosed confidential information to a L [1] with the expectation that L would keep it confidential and [2] with the purpose of obtaining legal advice, THEN the communication is covered by the ACP, even if a formal attorney-client relationship si never formed.

Does the PDC apply to publicly available information? 2 views.

V1. Best interpretation of ABA 1.6 is that the PDC does not apply to publicly available information. 1.6 itself does not create an exception, but 1.9(c) does permit disclosure and adverse use of former client confidential information if that info. has become generally known. IT is logical to interpret 1.6 and 1.9(c) in parallel fashion.

V2. Some Its hold that the PDC applies even if there are other sources of the information.

When is the ACP implicated?

The ACP is an evidentiary objection. The privilege is a creature of evidence law. If there is no request for the information or advice, the aCP is not implicated.

Distinguish: (A) Attorney-Client Privilege [ACP] v. Professional Duty of Confidentiality [PDC]

The ACP is a creature of evidence law - solely a matter of the common law and applicable rules of evidence. The PDC is embodied in the ethical rules--ABA 1.6---and is enforceable by state bar disciplinary authorities.

What information is protected by the PDC, but not the ACP

Information learned by L in non-privileged settings. I.e., information learned by L

through independent investigation rather than in communications with C
through communications that were not for the purpose of obtaining legal advice
non-confidential communications, such as conversations in which a stranger to the attorney-client relationship is present

When is the ACP applicable, but the PDC is not?

When a court attempts to compel the revelation of confidential information, L may object only on the basis of the ACP. A L may not assert a professional duty--including the PDC--as a ground for refusing to comply with a court order to produce information.

What does WPD protect

Documents (and other tangible forms, computer files) prepared by a L in anticipation of litigation.

Does the PDC prohibit adverse use of confidential C information?

Yes. The PDC prohibits the use of confidential client information, learned in the course of the representation, to the disadvantage of the client. See 1.8(b).

Does the ACP cover information communicated from C to L [for the purpose of obtaining legal advice]?

Yes. Everywhere the ACP protects info communicated from C to L for the purpose of obtaining legal advice.

Does the ACP cover information communicated from L to C [for the purpose of providing legal advice]?

V1 - Minority Rule (Traditional, Narrow ACP). ACP only covers communications from C to L, not communications from L to C.

V2 - Majority Rule (Modern, Broader ACP). ACP covers communications in both directions: from C to L, and from L to C.

ACP - Duration: General Rule

ACP lasts forever.

As a matter of federal evidence law, if a communication is privileged, the ACP survives the death of C despite a compelling need for the information, even in the context of a criminal investigation

ACP Duration - Exception to the General Rule

A limited "testator's intent" exception is recognized in some states: ACP does not apply when the communication of a decedent-client would help to resolve a dispute among heirs.

ACP Element 1) Communication: Not Covered

Information obtained by L via observation or investigation.
C's identity, appearance, or information such as the type of car C was driving.
Information learned from a non-client witness.

ACP Element 2) Privileged Persons - Includes

L + C
Agents of either L or C, who facilitate communications between the two (interpreters, translators).
Agents of L who facilitate the representation of C (investigators, paralegals).
Can include experts who are retained by L for the purpose of facilitating L's provision of legal services to C (accountants, economists). Idea is that they are necessary to the rep.

ACP Element 2) Privileged Persons - "Professional Capacity" Requirement

C must consult L in his "professional [legal] capacity" in order for the communication to be covered by the ACP. I

Identify ACP Element Implicated - Where L wears 2 hats (i.e., sits on BoD and another director consults him concerning business strategy, not legal advice).

Problem under Element 2) Privileged persons. C must consult L within his "professional [legal] capacity."

Analysis: Is L acting within his "Professional Capacity"?

Turns on the circumstances of the consultation, including,

The subjective belief of the person seeking advice (does he think he is consulting with L to obtain legal advice)
The nature of the advice sought (business strategy v legal advice)
The expectations of confidentiality surrounding the communication

When will communications between a prospective C and L be covered by the ACP?

General Rule: IF (1) a prospective C believes that he is consulting with L in his professional [legal] capacity, and (2) it is reasonable under the circumstances for the prospective C to believe that L is acting to protect his interests (i.e., L agrees to keep the communications confidential) . . .

THEN L will have an obligation not to disclose information learned from the prospective C [1.18(b)] AND the communication is covered by the ACP.

ACP - Element 3: In Confidence - General Rule

The communication must be made between L and C in private, with no non-privileged persons present. L + C must generally intend that the matter remain private (cf, plan to disclose the results of an internal investigation to the SEC), and they must not disclose the information later (waiver).

Element 3) In Confidence - Why must the communication remain confidential and not be disclosed by L or C

L must exercise reasonable care to ensure that confidential information is not disclosed.
Carelesness by L or C can waive the APC (waiver by inadvertent disclosure)
If C intentionally shares the same information with people other than his L, a court is likely to conclude that C did not intend the communication with L to be confidential and that the ACP doesn't cover it.

Element 3) In Confidence - Issue Spotting

(1) How crowded was the room when L + C talked; (2) Did L + C make an effort to talk privately

ACP Element 4) Purpose of Obtaining Legal Advice - General Rule

The communication must be made for the purpose of obtaining or providing legal advice - not business advice, public-relations strategies, or friendly counseling.

Element 4) Fork - the problem of in-house counsel (2 hats). Does the ACP apply when an entity-L gives some mixture of legal, strategic, and economic advice to a corporate constituent?

V1. (Broad ACP) As long as there there is a legal component to the advice, ACP applies.

V2. (Narrow ACP). The communication must be related to pure legal advice in order for the ACP to apply.

The ACP + Underlying Facts

The ACP does not block disclosure of underlying facts known by a privilege holder. Adversaries in litigation can seek discovery of underlying factual information contained in L-C communications.

C cannot be compelled to answer the question, "What did you say to your lawyer?" or "what did you write to your lawyer? However, C may not refuse to disclose a relevant fact within his knowledge merely because he incorporated a statement of the fact into a communication with his L.

Is it possible for only a portion of a communication to be privileged (i.e., cover letter covered by ACP, but not attached documents)?

Yes

When does the ACP cover facts?

1) If L or C know facts only be virtue of a privileged communication, the ACP may apply. That is, in some cases, the ACP protects the fruits of a confidential communication such that L may not be compelled to reveal an observation that resulted from information contained in a confidential communication from C.

2) In criminal cases, L may not be compelled to reveal factual information where the C would not be required to testify to those facts under the 5th Am.

The question on the page originate from the summary of the following study material:

2) WPD, PDC, ACP, and other basic duties

View summary

A unique study and practice tool
Never study anything twice again
Get the grades you hope for
100% sure, 100% understanding

Remember faster, study better. Scientifically proven.