Attorney Client Privilege With Former Employees In Queens
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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.
The privilege extends only to communications that the client intends to be confidential. Communications made in non-private settings, or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted, are not confidential and therefore are not protected by the privilege.
No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.
The United States Supreme Court rejected the control group test in Upjohn v. United States, 449 U.S. 383 (1981). Most courts now apply the Supreme Court's reasoning in that case to corporate privilege claims, including those involving former employees.
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.
There are two major exceptions to the lawyer-client privilege under the California Evidence Code, as discussed below. 2.1. Crime or fraud. 2.2. Preventing death or substantial physical harm.
The exceptions to the lawyer-client privilege include planning an ongoing crime and imminent harm.
The attorney-client privilege protects most communications between clients and their lawyers. But, ing to the crime-fraud exception to the privilege, a client's communication to her attorney isn't privileged if she made it with the intention of committing or covering up a crime or fraud.
A waiver can occur from a variety of conduct that fails to maintain the confidentiality of the communication. Either voluntary or inadvertent disclosure to outside or non-covered recipients, professional advisors outside the privilege, and experts and consultants, can result in waiver as a matter of law.