The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
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7 Professor Grace M. Giesel is the Bernard Flexner Professor and Distinguished Teaching Professor at the University of Louisville Louis D. Brandeis School of Law. She teaches contract law, professional responsibility, and contract drafting. Professor Giesel holds a B.A. in economics from Yale University and a J.D. from Emory University School of Law, where she graduated with dis- tinction and as a member of the Order of the Coif. Professor Giesel is the chair of the KBA Ethics Committee and is the author of many articles on professional responsibility and con- tracts topics. She is a member of the Louisville, Kentucky, and American Bar associations. 1 F or example, the court in United States v. United Shoe Mach. Corp, 89 F. Supp. 357, 358-59 (D. M ass. 1950), defined the privilege as follows: T he privilege applies only if (1) the asserted holder of the privilege is or sought to become a c lient; (2) the person to whom the communication was made (a) is a member of the bar of a court, or h is subordinate and (b) in connection with this communication is acting as a lawyer; (3) the com- munication relates to a fact of which the attorney w as informed (a) by his client (b) without the pres- ence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceed- ing, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. 2 See SCR 3.130(1.9(c))(duty to keep confidential in- formation about former clients); SCR 3.130(1.18(b)) (duty to keep confidential informa- tion about a prospective client). A prospective client is "[a] person who discusses with a lawyer the possibility of forming a client-lawyer relation- ship with respect to a matter." SCR 3.130(1.18(a)). 3 See SCR 3.130(1.8(b)). 4 See SCR 3.130(1.9(c)) and SCR 3.130(1.18(b)). 5 See SCR 3.130(1.0(e)). 6 See SCR 3.130(1.6) cmt. 5; see also SCR 3.130(1.14(c)) (a lawyer is impliedly authorized to make a disclosure of otherwise confidential infor- mation to the extent reasonably necessary to pro- tect the interests of a client with diminished capacity). 7 Other jurisdictions generally recognize the excep- tions to the duty of confidentiality that Kentucky recognizes as well as a few others. Commonly-rec- ognized exceptions allow an attorney to disclose confidential information to prevent a client's crime or fraud that likely will cause substantial financial injury to a third party if the attorney's service is being or was used in furtherance, and also allow an attorney to disclose confidential information to prevent, mitigate, or rectify substantial financial in- jury to a third party resulting from a client's crime or fraud if the attorney's service was used in fur- therance. See, e.g., Indiana Rules of Professional Conduct Rule 1.6(b)(2) &(3); Ohio Rules of Profes- sional Conduct Rule 1.6(b)(3). 8 SCR 3.130(1.6) cmt. 9. 9 SCR 3.130(3.3(b)). 10 Id. 11 See also SCR 3.130(4.1) (truthfulness to others); SCR 3.130(8.1)(disclosures regarding bar appli- cants and disciplinary matters). 12 See KRE 503(b). The rule's definition of "client" in- cludes not only a person in what would be re- garded as a lawyer-client relationship but also "a p erson …who consults with a lawyer with a view t o obtaining professional legal services from the lawyer." KRE 503(a)(1). Thus, there can be attor- n ey-client privilege in communications with a prospective client. 1 3 KRE 503(a)(4); see also Wal-Mart Stores, Inc. v. D ickinson, 29 S.W.3d 796, 804 (Ky. 2000) (privi- lege applies to paralegals). 14 K RE 503(a)(2). 15 S ee Collins v. Braden, 384 S.W.3d 154, 159 (Ky. 2012) ("Unlike other, qualified privileges, such as t he work-product privilege, great need and hard- ship cannot even begin to obviate the absolute a ttorney-client privilege."); St. Luke Hosps., Inc. v. K opowski, 160 S.W.3d 771, 777 (Ky. 2005) (privi- lege is absolute). 16 CR 26.02(3)(a). 17 4 49 U.S. 383, 389 (1981). 18 S ee Collins, 384 S.W.3d at 159 ("The analysis in any privilege case 'begins with the almost univer- s ally accepted rule that testimonial privileges are generally disfavored and should be strictly con- s trued.'") (quoting Stidham v. Clark, 74 S.W.3d 719, 722 (Ky. 2002)). 19 The Collins court provided the following example: " [I]f a physician employee had admitted fault to t he attorney investigator, the communication of the fault (and any recording of it, written or oral) would be protected. The privilege, however, w ould not prevent plaintiff's counsel from depos- ing the physician employee and asking whether h e was at fault." Collins, 384 S.W.3d at 159. 20 See In re Teleglobe Commc'ns Corp., 493 F.3d 3 45, 361 (3d Cir. 2007) ("if persons other than the client, its attorney, or their agents are present, the communication is not made in confidence, and the privilege does not attach"). 21 KRE 503(b). 22 See Rice v. Rice, 53 Ky. (14 B. Mon.) 335, 336 (1854); see also Magnetar Techs. Corp. v. Six Flags Theme Park Inc., 886 F. Supp. 2d 466, 478 (D. Del. 2012) ("The rules governing attorney-client privilege have evolved to cover the representation of two or more people by a single lawyer, a joint representation. In a joint representation, the joint privilege applies when multiple clients hire the same counsel to represent them on a matter of common interest."). 23 K RE 503(d)(5). 2 4 KRE 503(b)(3) provides that the privilege applies t o communications "[b]y the client or a represen- t ative of the client or the client's lawyer or a repre- sentative of the lawyer to a lawyer or r epresentative of a lawyer representing another party in a pending action and concerning a matter o f common interest therein." 25 F or a discussion of the common interest excep- tion, see Grace M. Giesel, End the Experiment: T he Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting, 95 M arq. L. Rev. 475 (2011-2012). 26 S ee In re Pac. Pictures Corp., 679 F.3d 1121, 1126-27 (9th Cir. 2012) ("voluntarily disclosing p rivileged documents to third parties will gener- ally destroy the privilege"); In re Grand Jury Pro- c eedings Oct. 12, 1995, 78 F.3d 251, 254 (6th Cir. 1996) ("By voluntarily disclosing her attorney's ad- vice to a third party, … a client is held to have w aived the privilege because the disclosure runs counter to the notion of confidentiality."). 2 7 SCR 3.130(1.2(d)) states: A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss t he legal consequences of any proposed course of c onduct with a client and may counsel or assist a client to make a good faith effort to determine the v alidity, scope, meaning or application of the law. 28 See KRE 503(d)(2)-(4). 29 Fed. R. Evid. 502(b). Federal Rule of Civil Proce- d ure 26(b)(5)(B) states: If information produced in discovery is subject to a claim of privilege or of protection as trial-prepa- ration material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or de- stroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a de- termination of the claim. The producing party must preserve the information until the claim is re- solved. B&B; • 1.15