Attorney-client Privilege in the United StatesSecond Edition

<p>You are preparing your client to appear at trial the next day. He is the only one
available to look after his mother and brings her with him to the meeting with you,
his attorney. As you sit in your opulent conference room going over the details of
his testimony with his mother hanging on every word, you know that the case is going
to be difficult because the plaintiff bank in the adversary proceeding has a personal
grudge against your client, who it claims obtained a loan by fraud.

</p><p>The session is going well enough when the receptionist calls you to tell you that your
opposing counsel in the case is waiting outside with some last-minute documents in
response to a request you made months ago. You open the conference room door to
go meet with the other lawyer only to find him waiting right outside. He hands you
the documents and leaves, but you know he got a look inside the conference room
before he left.

</p><p>That night your client's mother receives a subpoena from the bank to appear as a
witness to tell what went on in the conference room when you were preparing your
client for trial. Does attorney-client privilege protect your trial preparation?

</p><p>Paul R. Rice, a professor of law at The American University Washington College
of Law, has compiled an impressive loose-leaf binder of information on attorney-client
privilege in the United States. Filled with annotations, the book covers almost every
conceivable issue involving privileged communications between an attorney and client.

</p><p>The subject matter is covered completely and you will find a history of the
privilege, general principles, issues related to the attorney, issues related to the
client, a discussion of what communications are covered, a review of confidentiality,
legal advice or assistance, and exceptions to the privilege. Each of those topics
comprises other related topics.

</p><p>When does the privilege begin and when does it end? What is the purpose of the
communication, and does the purpose have any relationship to whether the communication
is covered?

</p><p>Consider this. You have represented a corporation since you helped to establish it
by preparing the articles of incorporation. You have dealt primarily, if not
exclusively, with the sole shareholder of the corporation for years. During the
ensuing years, you represent the corporation in collection litigation and creditor's
bankruptcy matters, and defend it against tort claims.

</p><p>Each and every communication you have, except for asides dealing with the
shareholder's golf game, is related to the policies, operations and litigation strategies
of the corporate client. The shareholder comes to you one day and tells you that the
corporation's business has dropped off and it is being sued for non-payment of trade
debt. In the course of the conversation, he indicates to you that he has taken
several unethical measures to diminish the chances that the creditor will be able to
find anything of value in the corporation's name.

</p><p>In short, he has been systematically transferring property from the corporation to
a second corporation he had you set up years before but you thought was inactive.
You were not aware of the transfers and have some concern as to the legality. You
also recognize that the shareholder, who is not your client, is damaging the
corporation that <i>is</i> your client.

</p><p>While you are deciding the best course of action as to your future representation,
your accounting department lets you know that the corporation has not paid its last
two bills and owes the firm $60,000 in fees and expenses. When you bring the
bill to the attention of the shareholder, he promises payment, then stonewalls you.

</p><p>The firm decides to sue to collect the bills owed by the corporation to it, which
now total $95,000 because you just concluded a jury trial at which you
successfully defended the corporation from claims totaling $5 million. You terminate
your employment and file a collection action against the corporation and the shareholder
on an alter-ego theory. The complaint goes unanswered, but the court requires you
to support a default judgment motion with affidavits on the issues of liability and
damages.

</p><p>What can you disclose? Have you violated confidentiality by making the allegations
in the complaint? What can you say in the affidavits without violating a privilege?

</p><p><i>Attorney-Client Privilege In the United States—Second Edition</i> has the answers where
there are answers and is helpful in determining responses when there is no clear
answer. It is extensive, if not exhaustive, on the subject matter it covers. The
only real drawback is that there is no subject-matter index. There is a general table
of contents at the front of the book and tables of contents at the beginning of each
section that are fairly detailed. An index at the end of the book covering all the
topics would be helpful.

</p><p>While the topic may not seem exciting at first glance, attorney-client privilege
is at the heart of our system of jurisprudence, which demands that clients be able
to communicate openly with their lawyers. If you want to protect the privilege and
yourself from malpractice, get the book. It was a privilege to review it. To order
a copy from West Group, call (800) 762-5272, or visit
<a href="http://www.westgroup.com&quot; target="window2">www.westgroup.com</a&gt;.

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