Issue: December, 2005
Author: John M. Burman
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Ethically Speaking - The Attorney-Client Privilege in Wyoming
Park I, The Basics
Virtually everyone has heard of the attorney-client privilege. A few people actually understand it. Many of them, including many lawyers, confuse the privilege with the ethical duty of confidentiality, the work-product doctrine, or both. This is the first in a series of articles that will address the three bases for the principle of confidentiality (the attorney-client privilege, the ethical duty of confidentiality, and the work-product doctrine) and attempt to explain those differences.
Confidentiality in General
A lawyer’s ethical duty of confidentiality is very broad. A lawyer may not reveal any information “relating to representation of a client . . . ,” regardless of the source of the information. The attorney-client privilege, by contrast, covers only communications between the lawyer and the client. Since the privilege applies only to communications between an attorney and the attorney’s client, it is a subset of the information which is confidential under the Rules of Professional Conduct. In sum, everything which is privileged is confidential, but only some things which are confidential are privileged.
The two doctrines apply at different times. The ethical duty of confidentiality applies to lawyers in all situations “other than those where evidence is sought from the lawyer through compulsion of law.” The privilege applies only 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 attorney-client privilege, in other words, is a rule of evidence.
The Attorney-Client Privilege in Wyoming
Since the attorney-client privilege is part of the law of evidence, the beginning point for analyzing it, or any evidentiary privilege is the rules of evidence. Rule 501 addresses privileges. “Except as otherwise required by . . . statute or by these or other rules . . . the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the State of Wyoming in the light of reason and experience.” The word “statute” is highlighted because the attorney-client privilege in Wyoming, as in most jurisdictions, is found in statute. (For purposes of cases filed in the federal courts in Wyoming, where the Federal Rules of Evidence apply, the federal law of privilege applies–and the federal law of attorney-client privilege is not codified.)
The attorney-client privilege exists in Wyoming by virtue of Wyo. Stat. § 1-12-101:
(a) The following persons shall not testify in certain respects:
(I) An attorney . . . concerning a communication made to him by his client . . . in that relation, or his advice to his client . . . . The attorney . . . may testify by express consent of the client . . . , and if the client . . . voluntarily testifies the attorney . . . may be compelled to testify on the same subject.
Under the statute, therefore, the attorney-client privilege in Wyoming exists only if three criteria are met: (1) there is a “communication;” (2) between a “client” and an “attorney;” (3) that is made “in that [attorney-client] relation.” The general view in other jurisdictions is that a fourth element is required. The communication must have been made “in confidence.” The idea, of course, is that a client does not have a reasonable expectation of privacy when communications are not made in confidence. Although this sensible requirement is missing from the plain language of Wyoming’s statute, it seems to be implicit in it. Simply stated, there is no reason for an evidentiary privilege to protect communications which were not made with any reasonable expectation of privacy.
The Statutory Elements of the Attorney-Client Privilege
As noted above, the attorney-client privilege in Wyoming exists only if three elements are satisfied: (1) there is a “communication;” (2) between a “client” and an “attorney;” (3) that is made “in that [attorney-client] relation.” The three elements narrow the scope of the privilege significantly, and raise a number of important questions.
What is a “Communication?”
First, what is a communication? It is self-evident that oral or written statements to or from a client are communications. The more difficult issue is whether non-verbal acts are communications.
Nonverbal communications, such as a client acting out her recollection of what happened, facial expressions or gestures, are generally included within the attorney-client privilege. As the California Supreme Court has noted, “‘almost any act, done by the client in the sight of the attorney and during the consultation, may conceivably be done by the client as the subject of a communication.’” The question will be whether the act “was intended to be” a communication. If it was, the privilege applies.
The Restatement of the Law Governing Lawyers also endorses a broad construction of “communication.” It extends the attorney-client privilege to include “communicative client acts.” The key inquiry is whether the act “is intended to convey information.” A client may communicate with a lawyer “through facial expressions . . . bodily movements, or gestures . . . . The privilege applies when the purpose of performing the act is to convey information to the lawyer.”
Applying the privilege to protect “communicative acts” furthers the purpose articulated by the United States Supreme Court: “[T]o encourage full and frank communication between lawyers and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Questions about the scope of the privilege should be answered in a way that furthers that goal.
However one defines “communication,” the privilege applies to communications, not to the underlying facts. It does not, therefore, prevent a client from having to testify about underlying facts, except in a criminal case where a defendant has a right not to take the stand, and in cases where a witness has the right to “take the Fifth.”
The privilege has limited applicability when a client furnishes evidence of a crime to the attorney or, at times, provides the information that leads to such evidence. The issue, which has not been addressed in Wyoming, was the subject of a comprehensive and often-cited opinion by the California Supreme Court.
In People v. Meredith, a criminal defendant charged with murder and robbery told his lawyer that he had removed money from the victim’s wallet and then tried to burn it, that he had only partially succeeded, and that the remains of the burnt wallet were in a trash can behind the accused’s home. The lawyer relayed the story to his investigator, and instructed him to locate and retrieve the wallet. That was done, and after examining the wallet, the attorney turned it over to the police. Ultimately, the location of the wallet became an important issue in the case and the lawyer, who had been replaced, was called to testify about where the wallet had been found. When asked that question, the attorney-client privilege was raised as an objection. The objection was overruled, and the attorney was required to answer the question. On appeal, the issues included whether the “observation of the location of the wallet, the product of a privileged communication, finds protection under the attorney-client privilege,” and whether the privilege protected information about the location of the wallet since it had been removed by the lawyer’s investigator.
As one would expect, the privilege applies to the oral or written disclosure by a client about the existence and/or location of physical evidence of a crime. Further, the privilege “extends to protect observations made as a consequence of protected communications.” It does not extend, however, to cover any alteration of the location or condition of the evidence. The problem is that “[w]hen defense counsel alters or removes physical evidence, he necessarily deprives the prosecution of the opportunity to observe that evidence in its original condition or location.” To extend the privilege “to bar admission of testimony concerning the original condition and location of the evidence in such a case permits the defense in effect to ‘destroy’ critical information.” Accordingly, “whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence . . .”
In addition to limiting the reach of the attorney-client privilege by allowing evidence of the location of evidence that was altered or removed, the decision in People v. Meredith is also instructive on the question of an attorney’s obligation when he or she comes into possession of evidence of a crime. Whether it should be turned over to law enforcement or the prosecution is a difficult and generally unresolved issue. Even if such a duty exists, the evidence will be admissible, but its source will not.
In sum, the term “communication,” should be construed to include non-verbal communications, as well as observations that result from privileged communications. Observations, however, are the limit. If an attorney, or the attorney’s agent, alters or removes evidence or fruits of a crime, the original location of such evidence or fruits should be admissible.
Who is an Attorney, and Who is a Client?
The second element of the statutory privilege is that the communication must be between a “client” and an “attorney.” While those terms seem, at first blush, to be clear, they often are not. When the client is an individual and he or she is communicating directly with the attorney, the applicability of the statute is clear. That is not the case, however, when the communication is between a non-lawyer staff member and a client, a lawyer and a representative of an organizational client, or a non-lawyer staff member and a representative of an organizational client. How the statute should be construed in such situations is discussed below.
When is a communication “in that relation?”
The final element is that the privilege applies only if the communication is made “in that [the attorney-client] relation.” Once again, this seemingly simple requirement may become tricky.
Problems have arisen when a client consults a lawyer for both business and legal advice because “the privilege protects only those disclosures necessary to obtain legal advice . . . and is triggered only by a client’s request for legal, as contrasted with business, advice.” Courts use different tests to determine the purpose for which a client consults an attorney. One view is that “when the ultimate corporate decision is based on both a business policy and a legal evaluation, the business aspects of the decision are not protected simply because legal considerations are also involved.” Another is that a court should look to the predominant nature of the communication to determine whether the privilege applies. If the predominant nature is legal, the entire communication should be privileged. This view is more in accord with purpose of encouraging full and frank communication and should be adopted in Wyoming.
Similarly, when a lawyer serves a corporation both as a board member and as an attorney, the lawyer faces a potential conflict of interest. In addition, communications between other board members and the lawyer may not be covered by the attorney-client privilege since they may have been made as part of the business relationship among board members, and not as part of the attorney-client relationship between the lawyer and the board.
A lawyer’s personal relationship with a client may also create problems regarding the applicability of the attorney-client privilege to communications between the attorney and his or her client. That is one of the reasons lawyers are discouraged from having sexual relationships with their clients. Communications between a lawyer and a client who are having such a relationship are often part of the personal relationship, not part of the professional one.
Although the Wyoming statute that codifies the attorney-client privilege raises more questions than it answers, it is possible to predict how the statute will be construed to answer those questions.
Construing Wyoming’s Attorney-Client Privilege
Rule 501 of the Wyoming Rules of Evidence is the “[g]eneral rule” on evidentiary privileges. “Except as otherwise required by constitution or statute . . . the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the State of Wyoming in light of reason and experience.” Since the attorney-client privilege is codified in statute, it is governed, of course, by that statute. But since the statute leaves many questions unanswered, those questions should be answered using the principles of the common law, interpreted “in light of reason and experience.”
The statute containing Wyoming’s attorney-client privilege is quoted in its entirety above. It is very spare. It does not, for example, define “attorney,” leaving the applicability of the privilege to non-lawyer assistants unclear. Similarly, it does not define “client,” leaving one to speculate on the applicability of the privilege to organizational clients. The statute also does not define a “communication,” leaving that question open, too. While the questions cannot be answered with certainty because of the lack of Wyoming Supreme Court opinions which flesh out the common law attorney-client privilege, it is possible to suggest answers based on the general principles of the privilege as articulated by other courts, including the United States Supreme Court.
The United States Supreme Court has twice addressed the scope of the attorney-client privilege in recent years. First, it discussed the applicability of the federal common law attorney-client privilege to organizations in Upjohn v. United States. Then, it ruled on the applicability of the federal privilege to communications to and from a now deceased former client. Although neither opinion answers nearly all the myriad of questions raised by Wyoming’s statute, both reiterate important common law principles which both provide the foundation for the court’s opinions in those cases, and help interpret the applicability of the privilege to other issues and in other jurisdictions.
First, the attorney-client privilege “is the oldest of the confidential privileges known to the common law.” It therefore appears to occupy a special spot in the law of evidentiary privileges.
Second, and perhaps more importantly, the fundamental purpose of the privilege is 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 law.” Quoting Rule 501 of the Federal Rules of Evidence, the federal analogue to Wyoming’s rule, the interpretation of the scope of the privilege, said the Court, is to be “guided ‘by the principles of the common law . . . as interpreted by the courts . . . in light of reason and experience.’” Those principles led, at least in part, to the Court’s decision to construe the attorney-client privilege broadly in the corporate context and to include communications between a now deceased client and that former client’s attorney. Those same principles should guide courts as they attempt to construe Wyoming’s attorney-client privilege statute.
Determining who is a client and who is an attorney?
The Wyoming statute’s references to “a client” and “an attorney” raise five primary questions: (1) are communications between an attorney and a prospective client privileged when no attorney-client relationship ever arises; (2) does the privilege protect communications between a client, or prospective client, and a member of an attorney’s support staff; (3) does the privilege protect a client from being compelled to testify about communications with a lawyer; (4) who is the client for purposes of the privilege when a lawyer represents an organization; and (5) if the privilege applies to organizations, which communications to or from which persons within the organization are protected by the attorney-client privilege?
The attorney-client privilege should extend to cover communications between an attorney and a prospective client.
The Wyoming statute is silent on the applicability of the attorney-client privilege to prospective clients. As a general rule, courts have extended the privilege to prospective clients who do not become clients. The reason is to give an individual complete freedom in selecting an attorney. In addition, communications with a prospective client are also confidential under the Rules of Professional Conduct.
Given the general principle behind the privilege, encouraging free communication between a person in need of legal advice and an attorney, it seems likely and desirable that the Wyoming Supreme Court would construe the statute to encompass a lawyer’s communications with a prospective client, even if the lawyer does not subsequently represent that prospective client.
The attorney-client privilege should include communications between a client (or a prospective client) and members of an attorney’s support staff.
Many of the communications between a lawyer and a client or between a lawyer and a prospective client occur indirectly. The client or prospective client communicates with members of the attorney’s staff. The statute is silent on the issue of whether such communications are privileged; it refers only to communications with an “attorney.” The statutory reference to “attorney” should be construed to include an attorney’s non-attorney support staff, whether permanent employees or agents for a particular case.
One of the most recent and most comprehensive analyses of the attorney-client privilege is contained in the Third Restatement of The Law Governing Lawyers. The Restatement takes the position that the attorney-client privilege applies to communications between “privileged persons.” The term “privileged persons” is then defined as “the client (including a prospective client), the client’s lawyer, [and] agents of either who facilitate communication between them . . .” A person is a privileged agent if “the person’s participation is reasonably necessary to facilitate the client’s communication with a lawyer . . .” Since it is often reasonably necessary for a client and a lawyer to communicate through other persons or with the assistance of others, the attorney-client privilege should extend to them as well.
Once again, the general principle behind the privilege, encouraging free communication between a person in need of legal advice and an attorney, suggests that communications between a client or a prospective client and an attorney’s support staff should be covered by the privilege. Such a result is only logical, and it seems both likely and desirable that the Wyoming Supreme Court would construe the statute to encompass communications between a client and an attorney's employees and/or agents.
The attorney-client privilege should be extended to protect a client from having to testify.
The statute which contains Wyoming’s attorney-client privilege applies, by its terms, only to prevent an attorney from testifying about communications to or from a client. It does not protect a client from being compelled to testify about those same communications. Despite that silence, the statute should be construed to protect clients, as well as attorneys.
The reason for the attorney-client privilege, according to the United States Supreme Court, is to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” That policy is so important that the privilege has been extended to include not just communications between a lawyer and a client, but “to protect observations made as a consequence of protected communications.” The theory for such an extension is that not extending the privilege to include observations “might chill free and open communication between attorney and client and might also inhibit counsel's investigation of his client's case.” So, too, not applying the privilege to protect clients from testifying would severely chill attorney-client communications, and courts have consistently construed the privilege to foster communications, not chill them.
Over a century ago, the Alabama Supreme Court put it well. The privilege “against the disclosure of such communications by counsel would be a mockery if the client could be compelled to disclose that as to which counsel's lips are sealed.” So, too, not extending Wyoming’s attorney-client privilege to prevent a client from testifying would seriously chill full and frank communication between attorneys and their clients; not doing so would make a mockery of the privilege. It is hard to imagine, therefore, that the Wyoming Supreme Court would not construe the statute which creates the attorney-client privilege to also prevent clients from having to testify about their communications with their attorneys.
The attorney-client privilege applies to organizations.
When the client is an individual, and he or she is communicating directly with an attorney, the attorney-client privilege statute obviously applies. Problems arise, however, when the client is an entity.
The Wyoming statute does not define “a client” for purposes of determining whether the attorney-client privilege applies to entities; nor has the Wyoming Supreme Court. In every jurisdiction which has considered the issue, however, it has been resolved in favor of applying the privilege to entities. Accordingly, the general view is that when the client is “a corporation, unincorporated association, partnership, trust, estate, sole proprietorship, or other for-profit or not-for-profit organization, the attorney-client privilege extends” to qualified communication between privileged persons. A qualified communication is one which is made “for the purpose of obtaining or providing legal assistance to the client.” Privileged persons includes those whose participation “is reasonably necessary to facilitate the client’s communication with a lawyer.”
Since an organization can act only through its agents, it is reasonably necessary to protect communications between at least some of the organization’s agents (“constituents,” in the words of the Rules of Professional Conduct and the organization’s attorney.) Extending the privilege to organizations is also consistent with promoting the policy behind the privilege. Including organizations within the privilege “encourages organizational clients to have their agents confide in their lawyer in order to realize the organization’s legal rights and to achieve compliance with the law.”
Accordingly, although the Wyoming attorney-client privilege statute is silent, and no Wyoming Supreme Court opinions are on point, it is reasonable to expect that the privilege will be extended to organizations in Wyoming, as has been done everywhere else. In addition to the overwhelming weight of authority in other jurisdictions, the Wyoming Supreme Court has acknowledged the need for corporate privacy by limiting the ex parte contacts a lawyer for an opposing party may have with corporate employees. The same principles argue in favor of extending the attorney-client privilege to include organizations. Doing so, however, does not end the inquiry. The next issue is to define the scope of the privilege in an organizational setting. And while it is reasonable to assume that the privilege will be extended to organizations in Wyoming, predicting the scope of the privilege is more difficult.
Which communications to or from which persons in an organization are protected by the attorney-client privilege?
Two general views of the scope of the attorney-client privilege in the organizational setting have emerged: (1) the control-group test; and (2) the subject-matter test. The control-group test is based on the notion that the attorney-client privilege applies only to communications between the organization’s lawyer and persons who have managerial responsibility or control of the issue(s) involved in the communications. The standard is difficult to apply, however, because the parameters of the control group will vary with the issue(s) involved. The persons with managerial responsibility for one area of the entity’s operation may be different than the persons responsible for another. As the composition of the control group varies, it is difficult to know which communications with which persons are protected. This lack of predictability renders the test impractical since “the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected [because a]n uncertain privilege . . . is little better than no privilege at all.” In addition, by definition, the test excludes communications between the attorney for the organization and persons without managerial responsibility. As a result, persons with important information, usually factual, fall outside the protection of the privilege. Similarly, individuals who are not part of the control group may be responsible for implementing the lawyer’s legal advice. Not protecting the communications with the organization’s lawyer “makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation’s policy.” Ultimately, the narrow scope of the control group theory “not only makes it difficult for corporate attorneys to formulate sound advice . . . [it] also threatens to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law.”
The subject-matter test takes a very different approach. Communications between an organization’s lawyer and any persons within the organization are covered by the attorney-client privilege if they relate to the subject for which legal advice is being sought or given. The test was given a significant boost in 1981 when the United States Supreme Court rejected the control-group test and, at least implicitly, adopted the subject-matter test in its decision in Upjohn Co. v. United States.
The Court began by reiterating the purpose of the privilege. It exists, wrote then Justice Rehnquist, to “protect . . . the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable him to give sound and informed advice.” Although the Court criticized and rejected the control group test, its adoption of the subject matter theory has not ended the debate since: (1) Upjohn involved the scope of the federal law of attorney-client privilege and the scope of the privilege is often an issue of state law; and (2) the subject-matter test requires a case-by-case analysis. Since Upjohn, some states have rejected the subject matter test, deciding to retain the control group test. Courts have generally been unwilling to adopt the subject-matter test in toto, preferring some sort of hybrid test. Also, applying the test case-by-case has resulted in numerous attempts to formulate a workable standard. The decision in Boyer v. Board of County Commissioners is a good example of such attempts.
Boyer involved a §1983 claim of unlawful retaliation. Ruling on a motion to compel discovery, the court discussed the practical application of the subject-matter test. The court took a pragmatic approach, noting that corporations act “through all employees acting within the scope of their employment.” Accordingly, it adopted the Upjohn decision’s approach that the giving of sound legal advice requires corporate counsel to gather information from “multiple levels of the corporation . . . .“ When it comes to the question of the applicability of the attorney-client privilege, therefore, the inquiry should be “whether the communications [to or from non-managerial persons] were made at the request of management in order to allow the corporation to secure legal advice.” The court then crafted a two step test: (1) the status of the employee; and (2) the context of the communication. If the employee occupies a managerial position, communications will generally be privileged. Regardless of an employee’s status, however, the attorney’s communications with that person will be covered by the attorney-client privilege if the employee is a “primary source for information concerning the facts” involved in the legal matter.
The Boyer opinion recognizes that entities often act through persons who are not in managerial positions, and that if the attorney-client privilege is going to accomplish its goals, it must include communications with the relevant actors, regardless of their positions. The opinion represents a logical, practical approach to the issue, an approach which is similar to the approach taken by the Wyoming Supreme Court in the Strawser case, which involved the related issue of ex parte communications with corporate employees. Further, Boyer was affirmed by the Tenth Circuit. Judge Brorby authored the unpublished opinion.
The Restatement also favors the subject matter test over the control group test since the latter “overlooks that the division of functions within an organization often separates decision makers from those knowing relevant facts.” It seems clear, therefore, that the better reasoned approach is the subject matter test or some variant of it. When all is said and done, however, lawyers in Wyoming have no clear standards for which communications with which individuals within an organization will be protected by the attorney-client privilege.
Since the parameters of the attorney-client privilege in Wyoming with respect to organizations are unclear, an attorney should advise organizational clients that the scope of the privilege in Wyoming is uncertain, and that communications with non-managerial persons may not be protected. The attorney should make such a disclosure since most employees will have the expectation that their communications with the organization’s lawyer are privileged. Disclosing that the communications may not be privileged may result in reticent employees, but that is preferable to employees having an expectation of confidentiality which turns out to be incorrect. If that occurs, the lawyer will likely be the target of a grievance, a malpractice action or both, premised on the lawyer’s failure to properly disclose the true situation.
While the scope of the attorney-client privilege is unclear, an organizational lawyer’s ethical duty is clear. Whatever the source of the information, it is likely to be confidential under rule 1.6, meaning that the lawyer may not disclose it in the absence of a waiver from the client, unless it falls within one of the exceptions to the rule or the lawyer has a duty to disclose.
The attorney-client privilege does not generally protect a client’s identity.
Though the Wyoming statute is silent, there has been considerable litigation around the country over whether a client’s identity is privileged, and the subject is one that deserves fuller treatment. As a general rule, it can be safely said that the attorney-client privilege does not protect a client’s identity, though such information is generally confidential under the rules of ethics. Although the issue is complex, it shall suffice, for now, to say that “[m]ost federal courts” that have considered the issue “have concluded that revealing the client’s identity does not violate the [attorney-client] privilege.”
In brief, the identity of a client, information about fees, and the general nature of the work for which the lawyer was retained are usually not privileged. Correspondence, bills, ledgers, statements and time records are only privileged when they indicate the motive of the client, litigation strategy, or the specific nature of the services provided by the lawyer.
The only time the client’s identity is protected by the attorney-client privilege is when the so-called “last link” doctrine applies. It applies when the client’s identity “may well be the link that could form the chain of testimony necessary to convict the individual of a federal crime.” While the client’s identity and the general nature of the client’s communication with his or her attorney may not be covered by the privilege, an attorney may not ethically cross-examine another lawyer’s client about the person’s contacts with his or her attorney.
The attorney-client privilege survives the death of the client.
As one might expect, the Wyoming statute is silent on the issue of whether the privilege survives the death of a client. Nevertheless, there are compelling reasons to expect the attorney-client privilege to be construed to survive the death of the client. That is the general rule, and it is the position taken by the United States Supreme Court in construing the federal law attorney-client privilege.
Vince Foster was Deputy White House Counsel for President Clinton. He was allegedly involved in the so-called “travelgate” matter, and was, therefore, under investigation by the Independent Counsel. Foster consulted a lawyer, who made notes of their conversation. Several days later, Foster committed suicide, and the Independent Counsel sought to obtain the notes from Foster’s lawyer. The lawyer resisted, arguing that the notes were covered by the attorney-client privilege. A federal district court found that the documents were privileged. The United States Court of Appeals for the District of Columbia reversed. The United States Supreme Court granted certiorari to address the issue of whether the attorney-client privilege survives the death of a client.
The Court began by discussing the nature and purpose of the attorney-client privilege. Writing for the majority, then Chief Justice Rehnquist noted that the privilege “is one of the oldest recognized privileges . . .” It is, he wrote, “intended to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law . . .’”
Finding that only two cases supported the Independent Counsel’s argument that the privilege should not survive the death of a client, the Court said “other than these two decisions, cases addressing the existence of the privilege after death . . . uniformly presume the privilege survives . . .” The Court then found “weighty reasons that counsel in favor of posthumous application,” and concluded that “[i]nterpreted in the light of reason and experience, the body of law requires that the attorney client privilege prevent the disclosure” after the death of a client.
Since the case involved the interpretation of the federal law of evidence, it is not binding on states–and the attorney-client privilege is a creature of state law in most states (as in Wyoming). The decision is, however, in keeping with the general principles undergirding the privilege, and it should be very persuasive authority on how the Wyoming privilege should be interpreted.
The burden of establishing the privilege is on the party seeking its protection.
As with any evidentiary privilege, the party seeking its protection bears “the burden of establishing the [attorney-client] relationship and the privileged nature of the communication.” Since the privilege is narrowly construed, the proponent “must bear the burden as to specific questions or documents, not making a blanket claim.” The claim must be made whenever privileged information is sought, even in discovery, or it will be lost.
As a practical matter, a lawyer who either withholds otherwise discoverable information or objects to a question as seeking privileged material must prove the elements of Wyoming’s attorney-client privilege. That is, the lawyer must prove that (1) there was an attorney-client relationship at the time of the communication (or a prospective relationship); (2) there was a communication from the client to the lawyer or vice-versa; and (3) the communication was made as part of that relationship. And the lawyer is ethically bound to assert the privilege when appropriate.
Lawyers have both legal and ethical obligations to keep information about clients confidential. One of the legal duties arises from the attorney-client privilege, part of the law of evidence. While the privilege is codified in Wyoming, the statute is regrettably sparse, leaving many important questions unanswered. It is possible, however, to make reasonable predictions about how the Wyoming Supreme Court will construe the Wyoming statute. Those predictions are, ultimately, predicated on the general purpose behind the privilege–encouraging full and frank communication between an attorney and the attorney’s client (or prospective client).
The protection of attorney-client privilege is far from absolute. Even when the privilege “has struggled into existence, it leads a fragile life.” The privilege may be lost through a waiver, or a communication may be subject to an exception. The next column will address those issues.