Attorney Client Privilege Former Employees In North Carolina
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FAQ
It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance.
A: Firstly, the privilege requires that three things exist: 1) an attorney (including his whole office and staff) and a client; 2) a private communication; 3) the purpose of providing legal advice. Once you have those three things, the privilege covers everything and is construed very broadly.
Proposed rule 4.2 carries forward the substance of current rule 2-100, the “no contact” rule, and prohibits a lawyer who represents a client in a matter from communicating, either directly or indirectly, about the subject matter of the representation with a person represented by a lawyer in the same matter.
Crime or Fraud Exception. If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged.
Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies.
Privilege Logs Required to Preserve Privilege: The state court rules now require any party withholding information from production to make the claim of privilege or protection as trial-preparation material expressly, and to describe the withheld information in a manner sufficient to enable parties to assess the claims.
(a) A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
The Garner Fiduciary Exception Where a fiduciary duty is owed to the shareholder or member, that shareholder or member must show good cause why the attorney-client privilege should not protect those communications from disclosure.