Attorney Client Privilege
The interesting part of the two matters I will be addressing here is that an individual almost has to know prior to a suit being filed that litigation may occur. Discussions and written matter, all correspondence, emails and documents exchanged between parties should be prepared with a thought to potential litigation.
Attorney Client Privilege and the Work Product Doctrine are two separate and distinct issues and should be treated within the legal world as separate disclosures.
Attorney Client Privilege, which originated in Roman and canon law, has evolved into a recognized judicial doctrine and is necessary in order to provide clients with access to effective, well informed counsel. In Upjohn Co. v US the Supreme Court the Court stated that “Its purpose 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 justice.”(a)
However, since the passage of the Patriot Act (b) (terrorism, September 11, 2001), and the various corporate scandals leading to the Sarbanes Oxley Act(c) and the Securities and Exchange Commission (2001 Seaboard Report) and the fall out from such companies as Enron, WorldCom the federal, state and regulatory offices of the government are attempting to pierce the Attorney Client Privilege. The government has attempted through two (2) separate practices to tear into what was once considered a “privilege” that was recognized and adhered to throughout the US. The two (2) issues we know face are (i) attorneys are being required to “waive” attorney client privilege in order to appear cooperative. Failure to waive has resulted in the court stipulating that the attorney was being uncooperative; thus penalties have become much harsher and (ii) employers are being advised to terminate employees or not provide them with legal counsel to support their actions. This practice has led to question the innocent until proven guilty
Attorney Client Privilege and the Work Product Doctrine are two separate and distinct issues and should be treated within the legal world as separate disclosures.
Attorney Client Privilege, which originated in Roman and canon law, has evolved into a recognized judicial doctrine and is necessary in order to provide clients with access to effective, well informed counsel. In Upjohn Co. v US the Supreme Court the Court stated that “Its purpose 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 justice.”(a)
However, since the passage of the Patriot Act (b) (terrorism, September 11, 2001), and the various corporate scandals leading to the Sarbanes Oxley Act(c) and the Securities and Exchange Commission (2001 Seaboard Report) and the fall out from such companies as Enron, WorldCom the federal, state and regulatory offices of the government are attempting to pierce the Attorney Client Privilege. The government has attempted through two (2) separate practices to tear into what was once considered a “privilege” that was recognized and adhered to throughout the US. The two (2) issues we know face are (i) attorneys are being required to “waive” attorney client privilege in order to appear cooperative. Failure to waive has resulted in the court stipulating that the attorney was being uncooperative; thus penalties have become much harsher and (ii) employers are being advised to terminate employees or not provide them with legal counsel to support their actions. This practice has led to question the innocent until proven guilty