The Attorney-Client Privilege and Attorney Work Product Doctrine Privilege are defined in Title 28 Rule 501 of the Rules of Evidence of the United States Code and the Federal Rules of Civil Procedure at R. 26 and the Federal Rules of Evidence at R. 501, respectively. Courts use these rules as guidelines to determine if the circumstances of a subject case meet the criteria to be protected under either privilege. Courts also use the individual state's or American Bar Association Model Rules of Professional Conduct (1983) or Model Code of Professional Responsibility (1969). In particular, courts refer to the rule that states a lawyer shall preserve the confidences and secrets of a client (Model Rules of Professional Conduct Rule 6.1 and Model Code of Professional Responsibility Canon 4(D)). Included in this responsibility is a requirement that a lawyer exercise reasonable care to prevent employees, associates and others whose services are utilized by the attorney from disclosing or using confidences or secrets of a client. [Emphasis not in original.]

Claims invoking the attorney-client and work product doctrines privilege must be considered by the courts separately for the two privileges are not the same. Additionally, either privilege may be waived by meeting proper criteria. The waiver of one privilege does not, however, automatically create a waiver of the other privilege.

The attorney-client privilege is designed to encourage full and frank communication between a client and attorney so that the attorney is completely informed of the facts in a legal matter. The privilege protects only (i) the substance of confidential communications from the client to attorney and (ii) communications from the attorney to the client that are based on confidential information provided by clients or that contain advice or opinions of the attorney. The client, not the attorney, benefits from this privilege. The attorney may, however, invoke the privilege on behalf of the client. More importantly, the attorney cannot invoke the privilege when the client wants to waive it, nor can the attorney waive the privilege without the client's consent.

A ban on all discovery sought by the adversary is not created by the privilege. To invoke the attorney-client privilege, the attorney must demonstrate that he/she is being ordered to disclose confidential communications from the client to the attorney for the purpose of obtaining legal advice and assistance.

Conversely, the work product doctrine privilege is separate from and broader than the attorney-client privilege because it protects materials prepared by the attorney, regardless of whether the material is disclosed to the client. It also protects materials prepared by agents for the attorney. [Emphasis not in original.] Both the attorney and client can assert the work product doctrine privilege. It is not designed to protect client confidences but, rather, to shelter the mental processes of the attorney. It is considered an independent source of immunity from discovery. Fed. R. Civ. P. 26(b)(1) states that, parties may obtain discovery, regarding any matter, not privileged, ... R. 26(b)(3) defines privilege as prepared in anticipation of litigation or for trial by or for another party or by or for that party's representative (including the other party's attorney, consultant, surety, indemnity, insurer or agent) ... [Emphasis not in original.]

The courts have expanded further on the definition of the protection of the work product doctrine privilege to include material that contains the thoughts, mental impressions, views, strategy, conclusions, opinions or legal theories and analysis of an attorney or other representative. [Emphasis not in original.] Even though this material may be shielded from discovery as work product, it can be overcome by showing a substantial need for the materials and an undue hardship in obtaining the materials elsewhere. Opinion work product that includes the attorney's personal recollections, notes and memoranda is absolutely, unconditionally, protected from discovery. In asserting the work product doctrine privilege, the party must show that material sought was prepared in anticipation of litigation or for trial.

Nearly since its inception, through its Case Law Committee and other means, NFPA has monitored matters involving paralegals before the court, including those that involve application of the attorney-client and work product doctrine privileges to paralegals. In the early days of the profession, neither the courts nor employing attorneys necessarily acknowledged that paralegals were in possession of client confidences. Neither were the courts or attorneys necessarily aware that paralegals knew or understood attorneys' strategies, mental impressions and conclusions. This was due, in large part, to a lack of knowledge about the substance of formal paralegal education obtained by a majority of paralegals, as well as the existence of a broad diversity in the types and complexity of legally substantive tasks being accomplished by paralegals. In addition, although paralegals themselves recognized their responsibility for maintaining client confidences and preserving related privileges, there was no clear understanding that paralegals were obligated to any formal professional responsibilities. That was then ... this is now.

In today's legal community, members of the bar as well as the judiciary are aware that a majority of paralegals receive specialized legal education and are both obligated to and committed to professional responsibilities. Significant progress has been made to formalize ethical obligations for paralegals and responsibilities for attorneys utilizing paralegal skill and knowledge. See, NFPA Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement (1997) and the American Bar Association Model Guidelines for Utilization of Legal Assistants (1991), respectively. In addition, with the 1995 creation of a formal Ethics Board, NFPA has accepted its responsibility to inform, interpret and provide additional guidance about paralegal ethical obligations to the entire legal community. See, NFPA's Informal Ethics and Disciplinary Opinions, at Professional Development, Ethics.

Knowing that the tide has turned and that courts are, more often than not, extending the attorney-client and work product doctrine privileges to paralegals, NFPA conducted a comprehensive study of recent decisions to support its conclusion. Though prior case law was considered, the crux of the research was limited to cases decided since 1990 through the present day. Although some of the recent decisions did not extend the attorney-client and/or work product doctrine privileges to paralegals, the reasons were not based on a lack of the right to invoke the privileges. Rather, unfavorable decisions were the result of a case-specific failure to meet the requisite criteria to invoke the privilege(s), e.g., the attorney's failure to screen a paralegal properly; the attorney's failure to properly admonish a paralegal against disclosing confidential information; or prior waiver of the privilege by the attorney or client.

The following summarizes the leading cases in this arena. It may not necessarily be all-inclusive if, for instance, a state permits citing to unpublished decisions. As with any legal research performed by paralegals, however, obtaining qualified legal interpretation or verification may be appropriate or advisable.

In In re Coord. Pre-Trial Proceedings in Petroleum Prod. Antitrust Litig., 143 F.R.D. 229 (D. Cal. 1992), a motion for a protective order for documents subject to a work product doctrine privilege was denied because the protection already had been waived by the Plaintiff in response to a request for production of documents. One of the documents in question was a critique written by a paralegal working for the Plaintiff; the critique was of a technical report written by Plaintiff's expert witness. The subject of the report related to anticipated trial testimony by the expert witness. The court held that the Plaintiff could not rely on the work product rule to avoid producing the paralegal's critique since the Plaintiff had waived the immunity by agreeing to provide all documents relating to the expert's trial testimony in response to a request for production of documents.

The court was guided in its decision for justifying the work product doctrine privilege by Hickman v. Taylor, 329 U.S. 495, 47 S. Ct. 385 (1947), and the fact that both parties accepted that the document would be protected under the privilege if the protection had not been already waived. Hickman held that it would be demoralizing and poorly serve the interest of either clients or the cause of justice to require attorneys to turn over their work product to the opposing party(ies).

In two issues relating to the same case, In re French, 145 B.R. 991 (Bankr. S.D. 1992), 162 B.R. 541 (Bankr. S.D. 1994), motions involving Joyce P. Gail, a paralegal, were filed. The first was for a Federal Rule of Bankruptcy Procedure 2004 Examination of Gail. She had conducted an interview with a debtor to obtain information needed to prepare bankruptcy petitions and schedules. The court held that Gail could not be required to submit to a bankruptcy examination when the information sought was specific in nature, rather than general to the overall administration of a bankruptcy case.

The court was guided in its decision by the ABA Model Rules of Professional Conduct and Bankruptcy Rule 2004(a), determining that, for ethical reasons, there was something repugnant in requiring a paralegal to submit to a Rule 2004 examination when the attorney

was the target sought. The court also believed that the paralegal was an an extension of the attorney and, therefore, allowing the discovery would quickly erode attorney-client relationships. Referring to the Model Rules of Professional Conduct, the court determined that, as the paraegal is an extension of the attorney, the attorney is responsible to insure that the [paralegal] preserves all client confidences.

This first motion having been defeated, a motion to compel discovery was filed under the Rules of Bankruptcy and Fed. R. Civ. P. Before the motion was heard by the court, the paralegal's deposition took place at which she refused to answer several questions deemed protected by the attorney-client privilege. One week after the deposition, the Debtor filed an Affidavit and Claim of Client's Privilege on Confidential Communication with Lawyer. It stated that during the preparation and administration of the case, Debtor made confidential communications to both the attorney and paralegal. At the paralegal's deposition, the attorney invoked the attorney-client privilege, specifically instructing the paralegal to refuse to answer questions regarding such confidential communications. The court was guided in its decision by Fed. R. Evid. 501, which the court believed was the protective device recognizing the need for confidential communications to be open between the client and attorney. The court determined that R. 501 is extended to safeguard privileged communications and that this privilege was extended to a lawyer's representative. Ultimately, albeit not relevant to the issues discussed herein, the court granted the motion to compel discovery because the Debtor had voluntarily disclosed the facts at his own Rule 2004 examination and was seeking to hide funds that should have been disclosed on the bankruptcy petition.

In the well-publicized and cited case of The Samaritan Found. v. Phoenix Children's Hosp., 172 Ariz. 426, 844 P.2d 593 (Ct. App. 1992), aff'd 176 Ariz. 497, 862 P.2d 870 (1993), a nurse paralegal employed by a hospital legal department conducted interviews with four operating room witnesses after a patient incident in the operating room. The interviews were at the direction of the legal department. The paralegal summarized the interviews in a written memorandum maintained in the legal department files. Plaintiff's counsel served discovery requesting the memorandum.

Hospital counsel invoked the attorney-client and work product doctrine privileges to prevent disclosing the memorandum. The court held that the document met the work product doctrine privilege, but not the attorney-client privilege. Thereafter, even though the document was found to meet the work product doctrine privilege, the Plaintiff's attorney proved that Plaintiff's substantial need for the document outweighed the need to preserve the privilege. All references to work product were redacted. The memorandum prepared by the nurse paralegal was never questioned by either the court or the parties as not being protected under the work product doctrine privilege.

In this case, the court was guided by the Ariz. Rules of Civil Procedure, R. 26(b)(3), which contains the same provisions stated in the federal rules. On appeal, the Arizona Supreme Court affirmed the Court of Appeals' decision concerning the work product issue, but vacated the opinion relating to the corporate attorney-client privilege.

In Mayberry v. State, of Indiana, 670 N.E.2d 1262 (1996), the Defendant appealed to the Supreme Court of Indiana on several issues. They included that a victim's statement to a paralegal friend was protected by the attorney-client privilege and the privilege was not lost when the paralegal told a police officer about the statement. In this case, defense witness Maretto, a friend of Phillips (the deceased victim) and paralegal at a law firm, testified at a murder trial. The State invoked the attorney-client privilege on the paralegal's behalf when questioned about a letter that Phillips had given to her when he requested legal advice from a lawyer at her firm.

The court stated that two prerequisites were needed to establish the privilege. They are: (1) the existence of an attorney-client relationship, and (2) that a confidential communication was involved. The court determined that Phillips approached Maretto at the law firm where she worked and asked to consult an attorney regarding his legal concerns; therefore, a confidential communication was involved. The privilege was invoked again to exclude the testimony of a police officer who had interviewed Maretto after Phillip's murder. In that interview, Maretto told the officer about the contents of the letter. The State argued that the police officer's testimony would be hearsay. The court held that information subject to the attorney-client privilege retains its privileged character until the client (Phillips) has consented to its disclosure. The court also determined that information possessed by the police officer was privileged.

In Tri-State Equip. v. U.S., No. CIV S-94-1033-EJG-PAN, 1996 WL 376340 (E.D. Cal. 1996), (not reported in F.Supp.) a motion for a protective order was filed to prevent the deposition of a paralegal working for Plaintiff's counsel. The court acknowledged a client's right to prevent disclosure of information or communications between the client and the attorney and/or the attorney's representative made for the purpose of facilitating rendition of professional legal services to the client. The court's criteria to uphold the attorney-client privilege extending to paralegals was (1) that the client must show that the person is a legitimate representative of the attorney; (2) that the conversation was made for the purpose of facilitating rendition of legal services; and (3) that the conversation was confidential and not intended to be disclosed to others.

The court held that there was no adequate factual demonstration that the paralegal was the legitimate representative of Tri-State's counsel and, further, that there was no proof that the particular conversation was had for the purposes of facilitating rendition of legal services or conducting ordinary business. Consequently, the court denied Plaintiff's request for a protective order, but the paralegal could assert the attorney-client privilege in response to certain questions.

In Gould, Inc. v. Alter Metals Co., No. 91C20371, 1993 WL 394765 (N.D. Ill. 1993) (not reported in F. Supp.), the court was guided in deciding a motion to compel production of documents by Fed. R. Civ. P. 26(b)(3) and Upjohn, (citation omitted) (1981). In the subject case, the court decided the fate of seven documents, in particular holding that Document Nos. 130, 131 and 132 were clearly work product, as they were created by paralegals or counsel for the purposes of this litigation ... (emphasis added). Of particular interest in the case is that the documents were not clearly described; however, neither party suggested that they were not work product nor contested that the documents prepared by paralegals did not fit the criteria of R. 26(b)(3) or Upjohn.

In In re Blinder, 123 B.R. 900 (Bankr. D. Colo. 1991), aff'd, No. 90-12654-SBB, 90-1170-SBB, 1991 WL 105636 (Bankr. D. Colo. 1991), (unreported in B.R.) the matter before the court was a Trustee's motion to disqualify former in-house counsel from representing one of the Debtor's largest creditors, based on an alleged conflict of interest. Debtor was a wholly-owned subsidiary of IEI, the debtor's largest creditor. After the Trustee terminated the Debtor's in-house counsel, IEI hired the attorneys and support staff as its new in-house counsel; the business location remained the same. In his motion, the Trustee requested, among other things, that [A]ttorneys and their paralegals and staff, be enjoined from revealing confidences, secrets and work product acquired or created while employed by Blinder, Robinson. (Emphasis added.)

The court held that the former in-house counsel's prior representation of the Debtor created a conflict of interest in representing IEI. The court also enjoined the attorneys, paralegals and staff from revealing confidences, secrets and work product acquired while working for the attorney. In this case, only the actions of the attorneys were in question, but the court enjoined the entire firm because of an attorney's implied responsibility, albeit unstated in the case, to insure that employees preserve client confidences. On appeal, the decision of the lower court was affirmed.

In a precedent-setting case entitled In re Complex Asbestos Litig., 233 Cal. App. 3d 572, aff'd, 283 Cal. Rptr. 732 (1991), a plaintiff's asbestos litigation firm appealed from an Order to disqualify the law firm in nine asbestos-related personal injury actions. All attorneys and the firm's nonattorney staff members had been disqualified. The issue before the bench was whether a law firm should be disqualified because a paralegal's previous employer was opposing counsel in pending litigation on which the paralegal had worked and consequently possessed attorney-client confidences. The law firm appealed this decision of the court of appeals.

Michael Vogel, a paralegal, worked for the Brobeck firm from 1985 to 1988 in asbestos litigation defense. His job involved preparing Settlement Evaluation and Authority Request (SEAR) forms, which are summaries of information and issues used by attorneys and clients to evaluate cases for settlement authority. They contained information about the Plaintiff and the claim extracted from medical reports, discovery responses and depositions. The SEAR forms were a part of the firm's computer database for each case. Vogel also attended meetings with the attorneys and clients where the strengths and weaknesses of cases were discussed and settlement authority recommendations were decided or granted. Vogel's job duties changed after being assigned to work with a trial team. He no longer was involved with settlement evaluation meetings and reports. His trial team work involved helping to prepare cases for trial.

In October 1988, Vogel was given two weeks' notice of termination due to decreased work. Vogel began his job search and learned that the Harrison law firm, which handled plaintiff asbestos work and other types of cases, was hiring paralegals. Vogel accessed Brobeck's asbestos database to determine the kinds of cases filed by the Harrison firm. Vogel contacted Harrison about employment and during the conversation, Harrison learned that Vogel did asbestos litigation settlements. Initially, an employment offer was not extended for two reasons: (1) a new paralegal was not needed until February or March 1989, and (2) concerns existed about the appearance of a conflict of interest. Harrison discussed the conflict problem with other attorneys at his firm; he informed Vogel he could be hired with a waiver from Brobeck's senior asbestos litigation partner. Vogel claims he advised Snyder, a Brobeck attorney, about the possible job. Vogel also claims that Snyder later told Vogel that Brobeck clients approved of the move to the Harrison firm and a written waiver would be provided if he wanted. Syder later denied these events; the trial court ruled in favor of Snyder. In December 1988, Vogel told Harrison that Brobeck approved of his working for Harrison and pressured Harrison for a job.

Although Harrison never confirmed Vogel's statements with Brobeck, a job offer to begin work in January 1989 was extended to Vogel. The work was to involve complex non-asbestos civil matters and, later, processing release documents and checks for asbestos litigation settlements. After two months, Vogel was asked to finish other paralegals' work involving asbestos plaintiffs' questionnaires; he also assisted when trial teams needed extra help. A Brobeck partner learned of Vogel's work and wrote a letter to Harrison inquiring about Vogel's job duties. Harrison responded about Vogel's asbestos work, said that he assumed there was no conflict of interest and requested details of the basis of any claimed conflict. Brobeck did not respond. Three months later, Vogel contacted an asbestos defendants' company about serving a subpoena for corporate minutes. The company contacted their counsel, which resulted in a motion to disqualify the Harrison firm. During the course of hearings on the motion, the Harrison firm terminated Vogel.

In making its decision, items reviewed by the court included: (1) concerns raised by disqualifying party's counsel; (2) confidentiality and the attorney-client privilege; (3) confidentiality and the nonlawyer employee; (4) the substantial relationship test as it relates to nonlawyer employees; and (5) the rule for disqualification. In its review, the court stated that the obligation to maintain a client's confidences is traditionally and properly placed on the attorney; however, for cost-effective representation to occur, nonlawyer employees also must handle confidential information. When nonlawyers find employment with opposing counsel, the risk of confidential information being compromised increases, whether deliberately or inadvertently. The court stated that attorneys hiring opposing counsel's employees must meet certain requirements, which are: (1) obtaining a written waiver by the prior employer, or (2) creating an ethical wall prior to employment that will screen the new employee from any involvement with the litigation. The court also stated that a balance must be struck between the preservation of open and honest communications between clients and attorneys and/or their employees, the danger of disclosure of client confidences and the ability of nonlawyers to change employment.

The appellate court held that disqualifying the law firm was appropriate unless written consent is obtained from the previous employer or the current employer effectively screens the employee from the litigation to which the information relates. It agreed with the trial court's disqualification for the following reasons: (1) disqualification was required because of errors of omission and insensitivity to ethical dictates allowing employees' misconduct to taint the firm with a violation of attorney-client confidentiality; (2) attorneys must prohibit employees from violating client confidences of former employers and present clients; and (3) attorneys must be held accountable for employees' conduct, in particular, where a clear threat to attorney-client confidences are involved.

In In the Matter of R. L. Sutton, 77 F3d 464 No. 95-5401, 1996 WL 6590002 (1996) (not published), the Attorney General's Office issued subpoenas for the former attorneys and paralegal of Respondent. Both Respondent and the individuals asserted the attorney-client and work product doctrine privileges. The court determined that the testimony and documents sought by the subpoenas were protected by the two privileges. Accordingly, the court denied the motion to compel and Order to show cause. Distinguishing this case from others more specifically on point is that the main argument was whether the testimony and documents fell under crime-fraud exception to the privileges and not whether the paralegal was covered by the privilege. There was no discussion in the case that the paralegal was not, at any time nor for any reason, covered under both privileges.

In Arzate v. Haynes, 915 S.W.2d 616 (Tex. App. [city omitted] 1996), Attorney Spencer represented Arzate in a medical malpractice claim. Spencer's paralegal, Lorena Tabares, worked extensively on the Arzate case. After 2.2 years of employment, Tabares left her position at Spencer's firm and went to work for Hicks & Associates (Hicks), a law firm defending Hayes in this medical malpractice suit. Arzate did not file a motion to disqualify the Hicks firm immediately, but waited until 38 days before trial. At the court hearing, the motion to disqualify was denied, and trial began December 12, 1994.

After trial concluded, Arzate appealed the denial of the motion. The appellate court based its decision on whether Hicks had taken sufficient measures to reduce the potential for misuse of confidences to an acceptable level. The court determined that Hammond, the interviewing and later-supervising attorney at Hicks, and later, another attorney with whom Tabares began working at Hicks, both instructed her not to discuss any confidential information about the Arzate case with anyone at Hicks and also not to work on the case. The appellate court held that the precautionary measures taken by the Hicks firm were sufficient to guard against disclosure of confidential information and affirmed the trial court judgment.

NFPA's research overwhelmingly supports its conclusion that the courts are extending attorney-client and work product doctrine privileges to paralegals. While there may be no statute or court rule that declares a paralegal-client privilege or paralegal work product doctrine is yet in existence courts look at the situation to determine if the lawyer is covered by the privilege and then apply that privilege to all nonlawyers employed by the attorney, including paralegals. Courts may extend these privileges based on the state's equivalent of ABA Model Rules of Professional Conduct Rule 5.3 making lawyers ultimately responsible for ensuring that their nonlawyer employees comply with standards for conduct compatible with their own.

Recent case law demonstrates that there is a much greater likelihood that the privileges will be extended to paralegals if:

• A paralegal preserves all confidential information provided by the client or acquired from other sources before, during and after the course of the professional relationship.

• A paralegal avoids all conflicts of interest and disclose any possible conflict to the employer or, if appropriate, the client, as well as to the prospective employers or clients.

• A paralegal complies with all ethical walls erected to protect a client's interests and preserve the client's confidences.

• A paralegal denotes attorney-client and/or attorney work product privilege(s) on documents prepared by the paralegal to ensure protection of the document and enable invoking the privilege(s) if necessary.

• A paralegal advises the attorney or responsible person that he/she is in possession of and understands attorney-client and/or attorney work product doctrine privileged information.

• A paralegal is familiar with rules set forth in the Federal Rules of Civil Procedure and Federal Rules of Evidence and parallel applicable state rules to optimize their use and assertion of privileges as they relate to paralegals.

Extending the attorney-client and work product doctrine privileges to paralegals is not a new concept. More frequent favorable decisions where paralegals are concerned can be expected as cases become more complex, as more lawyers become aware of the value of utilizing paralegal skill and knowledge, and as paralegal responsibilities and competition for work among lawyers increase.

Given the right circumstances, paralegals fulfill an important role in the legal profession. NFPA is committed to ensuring that all members of the legal community understand that paralegals fulfill a vital function in the legal profession and increasing access to the highest quality of legal services for the public whom it serves.

© June 1998 by National Federation of Paralegal Associations, Inc. All rights reserved.

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