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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

1.6 Rule 1.6 Confidentiality of Information

1.6:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 1.6
  • Background References: ABA Model Rule 1.6, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

1.6:101   Model Rule Comparison

There are no substantial differences between ARPC 1.6 and MRPC 1.6.

1.6:102   Model Code Comparison

1.6:200 Professional Duty of Confidentiality

  • Primary Alabama References: AL Rule 1.6
  • Background References: ABA Model Rule 1.6, Other Jurisdictions
  • Commentary: ABA/BNA § 55:101, ALI-LGL §§ 59-66, Wolfram §§ 6.1, 6.7
  • Alabama Commentary:

1.6:210   Definition of Protected Information

ARPC Rule 1.6 requires a lawyer to keep confidential information obtained through the representation of a client. A lawyer must follow the confidentiality rule with regard to any information obtained through the representation of a client, not just information obtained directly from the client. (RO - 94-09)

1.6:220   Lawyer's Duty to Safeguard Confidential Client Information

The comments to ARPC Rule 1.6 make clear the importance of maintaining confidentiality in order to "facilitate the full development of facts essential to proper representation of the client [and] encourage people to seek early legal assistance."

1.6:230   Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

Under ARPC Rule 1.6, a lawyer may not knowingly use a confidence or secret of a client for the advantage of the lawyer or of a third person unless the client consents after full disclosure.

1.6:240   Use or Disclosure of Confidential Information of Co-Clients

A lawyer may not represent co-clients when the confidential information of one client could be used to the detriment or benefit of the other client, absent informed consent.

1.6:250   Information Imparted in Lawyer Counseling Programs

Inapplicable.

1.6:260   Information Learned Prior to Becoming a Lawyer

Inapplicable.

1.6:300 Exceptions to Duty of Confidentiality--In General

  • Primary Alabama References: AL Rule 1.6
  • Background References: ABA Model Rule 1.6, Other Jurisdictions
  • Commentary: ABA/BNA § 55:101, ALI-LGL §§ 59-66, Wolfram §§ 6.4, 6.7
  • Alabama Commentary:

1.6:310   Disclosure to Advance Client Interests or with Client Consent

A lawyer is impliedly authorized to make disclosures of confidential information relating to the representation of a client in order to carry out the representation, except to the extent the client's instructions are to the contrary.

1.6:320   Disclosure When Required by Law or Court Order

A lawyer may reveal confidence and secrets of a client when required by law or by court order. The standard of proof required before a lawyer comes under an obligation to refute information furnished to a tribunal by or on behalf of his client is that the "information must 'clearly establish' that the client has perpetuated a fraud." RO-90-71.

1.6:330   Disclosure in Lawyer's Self-Defense

ARPC Rule 1.6(b)(2) specifically authorizes a lawyer to reveal confidential information of a client if necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. Likewise, the lawyer is entitled to disclose such information to establish a defense to a criminal charge or civil claim against a lawyer based upon conduct in which the client was involved or to respond to any allegations in any proceeding concerning the lawyer's representation of the client.

1.6:340   Disclosure in Fee Dispute

If there is a dispute as to fees regarding the lawyer's representation of a client, "the rule of confidentiality should not prevent the lawyer from defending against the charge." However, "the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure of those having the need to know it, and to obtain protective orders to make other arrangements minimizing the risk of disclosure."

A lawyer hired by an insurance company to represent an insured must not accept litigation management guidelines imposed by the company if the insurance company requires revealing certain client information to third parties. (RO-98-02). The General Counsel was particularly concerned that lawyers not reveal information to parties such as bill auditors which would violate ARPC 1.6 confidentiality and waive the client-lawyer privilege. (RO-98-02). The General Counsel likewise expressed concern that the same problem could arise if the insurance company required that each attorney bill be accompanied by a case analysis in an integrated defense plan. (RO-98-02).

1.6:350   Disclosure to Prevent a Crime

A lawyer must exercise professional discretion in deciding whether to reveal client's confidential information in order to prevent criminal conduct which is likely to result in imminent death or substantial bodily harm. "The lawyer's exercise of discretion requires consideration of such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction, and factors that may extenuate the conduct in question." ARPC 1.6 comments. If a lawyer's services are going to be used to further a fraud, then mandatory withdrawal, not disclosure, is required. (RO - 94-09).

1.6:360   Disclosure to Prevent Death or Serious Bodily Injury

See discussion under 1.6:350 above.

1.6:370   Disclosure to Prevent Financial Loss

See discussion under 1.6:350 above.

1.6:380   Physical Evidence of Client Crime [see 3.4:210]

1.6:390   Confidentiality and Conflict of Interest

A lawyer must withdraw from representation of a client when his knowledge of confidential information of another client renders him unable to carry out the representation of either client.

1.6:395   Relationship with Other Rules

Inapplicable.

1.6:400 Attorney-Client Privilege

  • Primary Alabama References: AL Rule 1.6
  • Background References: ABA Model Rule 1.6, Other Jurisdictions
  • Commentary: ABA/BNA § 55:301, ALI-LGL §§ 68-78, Wolfram §§ 6.3-6.5
  • Alabama Commentary:

1.6:410   Privileged Communications

Alabama follows the general rules regarding the attorney-client privilege. In general, the communication must be between the attorney and client, the privilege is one for the client to assert, and the communication must be made under circumstances indicating that the client intended the communications to be confidential. The known presence of third parties may destroy this privilege. In addition, the privilege applies only if the attorney is consulted for the purposes of securing legal advice. The privilege does not apply if the client consults the attorney as a business advisor. McClary v. Walsh, 202 F.R.D. 286, 290 (N.D. Ala. 2000); Ex Parte Gonzales, 686 So.2d 204 (Ala. 1996).

1.6:420   Privileged Persons

The privilege is for the client to assert. The Restatement § 68 states that in order for a communication to be subject to the attorney-client privilege, it must take place between or in the presence of only "privileged" individuals. Hazard, supra § 9.7 at 9-21. Ala R. Evid. 502(c) says that the client is the individual who may assert the privilege and that any communication between the client or his representative and the attorney or his representative qualifies as privileged. The presence of a third party, such as a secretary or paralegal, who is "an agent of the lawyer who facilitates the representation," does not waive the privilege. Hazard, supra § 9.5 at 9-17; E.g., Richards v. Lennox Industries, Inc., 574 So.2d 736 (Ala. 1990)(finding that conversations with law clerk were privileged as long as he was acting in "a legal capacity"). However, disclosure to a non-privileged third party does waive the privilege. See e.g., Goza v. Goza, 470 So.2d 1262, 1266 (Ala.Civ.App. 1985).

The definition of client is not construed so narrowly as to only include those who have formerly entered into a attorney-client relationship. Hazard, supra § 9.7 at 9-21. Rather, "because a prospective client must ordinarily consult confidentially with a lawyer before deciding whether to retain the lawyer, such persons are almost always entitled to the protection of . . . the attorney-client privilege, even if now client-lawyer relationship results." Id.; E.g., Grimsley v. State, 678 So.2d 1197, 1202 (Ala.Crim.App. 1996)(noting that even if the attorney refuses to represent a client, the privilege still applies to conversations between the prospective client and attorney). Further, attorneys are barred from revealing confidential information after the expiration of the professional relationship and even after a client's demise. Hazard, supra § 9.7 at 9-25.

1.6:430   Communications "Made in Confidence"

Ala. R. Evid. §  502(a)(5) describes a confidential communication as one made "if not intended to be disclosed to third parties other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those to whom disclosure is reasonably necessary for the transmission of the communication."

1.6:440   Communications from Lawyer to Client

The attorney-client privilege also extends to statements made by the lawyer to his client. Hazard, supra § 9.7 at 9-22. Use of the ambiguous phrase "communication between a lawyer and another person" indicates that the Alabama courts are not concerned with which party actually made the statement. See McClary, 202 F.R.D. at 290.

1.6:450   Client Identity, Whereabouts, and Fee Arrangements

Normally a lawyer cannot claim the attorney-client privilege to keep the identity of his client or information about their legal fees confidential. Hazard, supra § 9.11 at 9-37. The rationale behind this is that such information is a result of the lawyer's observation and not a communication from the client. Id. However, there are circumstances under which a court might decide that such information is within the scope of the privilege. See e.g., Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960)(finding that client identity was under privilege if it would be the only fact needed to convict of a crime). In Ex parte Enzor, the Alabama Supreme Court found that an attorney did not have to disclose the identity of his client when client had admitted his acceptance of a bribe. 117 So.2d 361 (Ala. 1960); See e.g., Grand Jury Matter No. 91-01386, 969 F.2d. at 997 (quoting In re Grand Jury Proceedings 88-9, 899 F.2d 8039 (11th Cir. 1990)(noting that "merely because a matter which the lawyer is asked to reveal might incriminate a client does not make that matter privileged", and finding that the identity was privileged only when the disclosure of identity "would also reveal the privileged motive for the client to seek legal advice.").

1.6:460   Legal Assistance as Object of Communication

As mentioned earlier, a key element in evoking the attorney-client privilege is the existence of a professional relationship. Hazard, supra § 9.7 at 9-21. Information not "relating to representation of a client" is not privileged. Id. "So long as the client consults to gain advantage from the lawyer's legal skills," the communication is protected. Restatement (Third) of The Law Governing Lawyers § 72 (1998); See e.g., Grimsley, 678 So.2d at 1197.

1.6:470   Privilege for Organizational Clients

The attorney-client privilege is equally applicable to business organizations such as partnerships, limited liability partnerships, limited liability corporations, incorporations.

Generally, when an attorney represents a corporation the attorney-client privilege exists for the corporation as it would for an individual. Hazard, supra § 9.8 at 9-28. Problems often result because it is unclear which "agents" may communicate with the attorney for the corporation and be covered by the privilege. Id. As the federal law now stands, even the lower level employees can operate as agents of the corporation, protected by the privilege. Upjohn Co. v. United States, 449 U.S. 383 (1981). In Jay v. Sears Roebuck & Co., 340 So.2d 456 (Ala. Civ. App. 1976), the court found that allowing a contract sales manager to testify about statements made to the Sears' corporation attorney would be a violation of the attorney client privilege. See also Ex parte Alfa Mut. Ins. Co., 631 So.2d 858 (Ala. 1993)(citing Jay and finding that attorney-client privilege protects corporate clients).

1.6:475   Privilege for Governmental Clients

The attorney-client privilege functions similarly with relation to government entities as it does with corporate clients. Hazard, supra § 9.8 at 9-29. In some cases, due to the Freedom of Information Act, certain documents or information may be subject to public disclosure even though they would otherwise be considered confidential. Id. at 9-30. However, "courts have consistently read into the Act an exception exempting from disclosure what would have been protected by the attorney-client privilege in the case of a private individual." Id. In Alabama, courts will likely treat governmental clients the same as corporate clients and extend them the same protections under the privilege as individual clients are afforded. See e.g., Ex parte City of Leeds, 677 So.2d 1171 (Ala. 1996)(finding that mayor's consultation with the city attorney prior to deposition was protected).

1.6:480   Privilege of Co-Clients

Ala. R. Evid. 501(c)(5) specifically addresses the issue of joint clients. Generally, a communication made with respect to the representation of joint clients is not privileged as to between or among any of the clients.

When one lawyer represents two separate clients, communications between the co-clients is protected by the attorney-client privilege. Hazard, supra § 9.12 at 9-43; E.g., Bertarelli v. State, 585 So.2d 212, 217 (Ala.Cr.App. 1991)(finding that because four clients were represented by one attorney there mutual discussions were protected by the privilege). Further, a co-client cannot waive the privilege with relation to another co-client. Hazard, supra § 9.12 at 9-44. The Alabama Supreme Court has noted that "Where two or more persons employ an attorney as their common attorney their communications to him in the presence of each other are regarded as confidential . . . and are privileged to them." International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers v. Hatas, 287 Ala. 344, 366-67, (1971)(quoting 141 A.L.R. at p. 562). However, in subsequent proceedings where co-clients are adverse parties, the co-clients cannot claim the privilege with relation to information that was previously shared. Hazard, supra § 9.12 at 9-44.

1.6:490   Common-Interest Arrangements

Common interest arrangements differ from co-client situations in that the parties are represented by different lawyers. Hazard, supra § 9.12 at 9-44. However, the attorney client-privilege functions in largely the same manner. Id. The underlying rationale, like that in co-client situations, is that disclosing information to a third party lawyer or client who shares a common interest does not waive the attorney-client privilege. Id. Agreements are usually contained in some form of written contract where both parties and their attorneys agree to share, but not disclose pertinent information. Id. As would be expected, one party cannot waive the privilege of a separate party. Id. It is important to note that all parties present should have a common interest in all subject matters discussed or the privilege could be waived. See Crenshaw v. Crenshaw, 646 So.2d 661, 663 (Ala. 1994)(holding that waiver occurred "because third parties who did not have common interests in the subject matter discussed were present.").

1.6:495   Duration of Attorney-Client Privilege

"It is almost universally held that the lawyer's duty to maintain silence survives not only the relationship but also the death of the client." Hazard, supra § 9.7 at 9-25. In Swidler & Berlin v. United States, 524 U.S. 399 (1998), the Supreme Court upheld the attorney-client privilege as surviving the death of the client. Id. at 9-26. Similarly, "the general rule in Alabama is that an attorney will not be compelled to testify regarding matters communicated to a former client." Crumpton v. McDowell, 721 So.2d 690, 694 (Ala.Civ.App. 1996).

1.6:500 Waiver of Attorney-Client Privilege

  • Primary Alabama References: AL Rule 1.6
  • Background References: ABA Model Rule 1.6, Other Jurisdictions
  • Commentary: ABA/BNA § 55:401, ALI-LGL §§ 78-80, Wolfram § 6.4
  • Alabama Commentary:

1.6:510   Waiver by Agreement, Disclaimer, or Failure to Object

§ 78 of the Restatement of the Law Governing Lawyers establishes that the attorney-client privilege is waived if the client, the client's lawyer, or another agent of the client: (1) agrees to waive the privilege; (2) disclaims protection of the privilege; or (3) fails to object to testimony concerning confidential information acquired during the attorney-client relationship. Restatement (Third) of the Law Governing Lawyers: § 78 (1998).

Alabama courts have yet to rule directly on waiver of the attorney-client privilege by agreement. The Alabama Rules of Evidence, though, suggest that such a waiver may be possible. See Ala. R. Evid. 510. Rule 510 states that consenting to the disclosure of any significant part of a privileged communication constitutes a waiver of the attorney-client privilege. R. 510. Waiver by consenting to the disclosure of privilege matter does, however, differ from the explicit agreement to waive the attorney-client privilege contemplated by the Restatement. See R. 510; § 78 cmt. c. Thus, Alabama's exact position on waiver by agreement is unclear.

Under the second type of waiver mentioned in § 78 of the Restatement, the attorney-client privilege is waived if an authorized individual disclaims protection of the privilege and (a) another person reasonably relies on the disclaimer to his detriment; or (b) reasons of judicial administration require that the client not be permitted to revoke the disclaimer. § 78. There are few decisions nationally and none in Alabama that deal with waiver of the attorney-client privilege by disclaimer. See C. Wright & K. Graham, Federal Practice & Procedure § 5507, at 583 (1986). Thus, it is uncertain whether Alabama courts will adopt the Restatement position concerning waiver by disclaimer or some variation thereof.

Alabama Courts have adopted the position that failure to object to testimony protected by the attorney-client privilege constitutes a waiver of the privilege. Swain v. Terry, 454 So.2d 948, 954 (Ala. 1984). Waiver under these circumstances is an application of two general rules: (1) that reasonable efforts must be made to maintain the secrecy of confidential communications; and (2) that parties must make timely objections to inadmissible evidence. § 78 cmt. e (citing Fed. R. Evid. 103(a)(1); § 86). Waiver by failing to object to protected testimony acts as an absolute bar, disallowing any future invocation of the privilege. Swain, 454 So.2d at 954 (holding that plaintiff's failure to invoke the attorney-client privilege with regard to one attorney's testimony effectively opened the door to similar testimony by other members of the law firm with knowledge of protected communications).

1.6:520   Waiver by Subsequent Disclosure

A person who possesses an attorney-client privilege "waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. " R. 510. A waiver by disclosure arises under a variety of circumstances. See R. 510 advisory committee's notes. It may occur, for example, "when the holder allows an unnecessary third party to be privy to an otherwise privileged communication." Id. "Additionally, it may arise when the holder tells a third party about the privileged matter." Id.

Waiver of the attorney-client privilege by subsequent disclosure has two significant limitations. Id. First, waiver only occurs when the holder discloses, or allows disclosure of, the substance of the privileged communication. Id. Disclosing the fact that a conversation occurred without disclosing the substance of the conversation does not constitute a waiver of the attorney-client privilege. Id. Second, even if the holder discloses only a portion of the privileged conversation, the disclosure must be of a significant part of the privileged conversation. Id.; See Ex Parte Great Am. Surplus Lines Ins. Co., 540 So.2d 1357, 1359 (Ala. 1989). "Whether a significant part of the privileged matter has been disclosed is a common sense question for the judge." Id. (citing N.D. R. Evid. 510 explanatory notes).

Disclosure does not result in a waiver of the attorney-client privilege in three instances. First, "a disclosure that is compelled erroneously does not prevent the holder from subsequently asserting the privilege." R. 511(a) advisory committee's notes. Second, there is no waiver "when the disclosure is made without the holder's having the opportunity to claim the privilege." Charles W. Gamble, McElroy's Alabama Evidence, § 394.01(2)(d) (5th ed. 1996) (citing R. 511(b)). This situation arises when "someone other than the client discloses the privileged matter without the consent of the client." Id. Finally, there is also no waiver if the disclosure is made in the course of another privileged communication. R. 510

1.6:530   Waiver by Putting Assistance or Communication in Issue

The principle that the attorney-client privilege is implicitly waived when a party puts an attorney-client communication at issue in a case is well settled in Alabama. See Ex Parte State Farm Fire & Casualty Co., 794 So.2d 368 (Ala. 2001); Ex Parte Malone Freight Lines, Inc., 492 So.2d 1301 (Ala. 1986). However, Alabama has applied a comparatively strict test for determining whether a party has waived the attorney-client privilege by "issue injection". State Farm, 492 So.2d at 375. In Alabama, "this determination turns on whether the actual content of the attorney-client communication has been placed in issue such that the information is actually required for the truthful resolution of the issues raised in the controversy." Id. That is, a party has waived the attorney-client privilege by "issue injection" only when the contents of the communication are "integral to the outcome of the legal claims of the action." Id. at 374 (citing Remington Arms Co. v. Liberty Mutual Ins. Co., 142 F.R.D. 408, 412-415 (D. Del. 1992)). The Alabama Supreme Court has held that:

The contents of the communication [are] integral to the outcome of the litigation in situations where a party specifically pleads, as an element of the claim, his or her reliance on an attorney's advice, or voluntarily testifies regarding portions of the actual advice contained in the communication, or places in issue the nature of the attorney-client relationship during the course of the litigation.

Id.

Under these circumstances, the party has implicitly waived his attorney-client privilege because he has established an attorney-client communication as an issue of the case, one which cannot be resolved without an examination of the communication. Id.

1.6:600 Exceptions to Attorney-Client Privilege

  • Primary Alabama References: AL Rule 1.6
  • Background References: ABA Model Rule 1.6, Other Jurisdictions
  • Commentary: ABA/BNA §§ 55:901 et seq., ALI-LGL §§ 81-86, Wolfram §§ 6.4
  • Alabama Commentary:

1.6:610   Exception for Disputes Concerning Decedent's Disposition of Property

The attorney-client privilege does not apply to "a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction." R. 502(d)(2). Essentially, Rule 502(d)(2) states that a communication from or to a decedent will not be protected in a subsequent action between parties claiming an interest through the decedent. Id. Historically, this exception was limited to cases where two parties had a claim under a will. Stappas v. Stappas, 122 So.2d 393 (Ala. 1960). However, Rule 502(d)(2) expands the exception to also include claims concerning inter vivos transactions. R. 502(d)(2).

Rule 502(d)(2) is often justified on the ground that "the decedent would have wished full disclosure to facilitate carrying out [his] intentions." Restatement (Third) of the Law Governing Lawyers § 81 cmt. b (1998). Furthermore, because most decedents would likely desire to have their intentions respected, this exception "does little to lessen [a client's] inclination to communicate freely with [his attorney]." Id. Thus, while there is little case law interpreting its scope, Rule 502(d)(2) is a firmly rooted exception to the attorney-client privilege.

1.6:620   Exception for Client Crime or Fraud

The privilege does not apply to situations in which legal services are sought for the purpose of enabling or aiding in the commission or planning of what the client knows or reasonably should know to be a crime of fraud or a crime. Ala. R. Evid. §  502(d)(1).

The attorney-client privilege does not apply "if the services of the attorney were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud." R. 502(d)(1). Two requirements must be satisfied before a court will apply the crime-fraud exception to the attorney-client privilege. 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 503.31 [4][a] (Joseph M. McLaughlin ed., 2d ed. 2002); See R. 502(d)(1) advisory committee's notes. First, the party asserting the exception must establish that the client knew or should have known that what the client planned to commit was criminal or fraudulent. R. 502(d)(1) advisory committee's notes. A reasonable person standard is applied in making this determination. Charles W. Gamble, McElroy's Alabama Evidence, § 388.06(1) (5th ed. 1996); See R. 502(d)(1). Second, The party asserting the exception must establish that the attorney's assistance was obtained for the purpose of furthering a criminal or fraudulent activity. R. 502(d)(1). This "in furtherance" requirement only applies "where the communication is intended to or actually advances the client's illicit purpose." 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.10 (3d ed. 2002). A client who talks to an attorney about a completed crime for the purpose of mounting a defense clearly has not met the "in furtherance" requirement and retains the attorney-client privilege. Id.

1.6:630   Exception for Lawyer Self-Protection

The attorney-client privilege does not apply to a "communication relevant to an issue of breach of duty by an attorney to the client or by a client to the client's attorney." R. 502(d)(3); See Ala. R. Professional Conduct, Rule 1.6(b)(2). Essentially, this means that when a client charges his attorney with misconduct or vice versa, the attorney-client privilege is lifted insofar as is necessary to allow the accused to defend the charge. State v. Click, 768 So.2d 417, 422 (Ala. Crim. App. 1999) (citing Charles W. Gamble, McElroy's Alabama Evidence, § 394.01(3) (5th ed. 1996)). For instance, a client cannot sue his attorney for negligence and then "object when the attorney attempts to testify as to the attorney's own version of what was said." Id. Use of this exception is limited to those communications that are relevant and necessary to the attorney's defense. Id.

1.6:640   Exception for Fiduciary-Lawyer Communications

Section 84 of the Restatement of the Law Governing Lawyers states:

In a proceeding in which a trustee of an express trust or similar fiduciary is charged with breach of fiduciary duties by a beneficiary, a communication otherwise [protected] is nonetheless not privileged if the communication: (a) is relevant to the claimed breach; and (b) was between the trustee and a lawyer . . . who was retained to advise the trustee concerning the administration of the trust.

Restatement (Third) of the Law Governing Lawyers § 84 (1998).

Alabama has no statute or case law adopting or rejecting this Restatement position. Thus, it is uncertain whether Alabama courts would recognize an exception to the attorney-client privilege for fiduciary-attorney communications.

1.6:650   Exception for Organizational Fiduciaries

The exception to the attorney-client privilege for organizational fiduciaries most often arises with shareholder derivative suits. Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). The Garner court determined that shareholders suing their corporation could, under appropriate circumstances, discover communications otherwise protected by the attorney-client privilege. § 85 cmt. b; Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir. Ala. 1994) (citing Garner, 430 F.2d at 1103-1104). However, Garner recognized that "the complete removal of the attorney-client privilege from the grasp of the corporation client . . . would expose corporations to harassment suits by minority stockholders and a possible deterioration of candid attorney-client communication and effective corporate management." Cox, 17 F.3d at 1414 (citing Cohen v. Uniroyal, Inc., 80 F.R.D. 480, 483 (E.D. Pa. 1978)). Thus, Garner does not bar a corporation from asserting the privilege "merely because those demanding information enjoy the status of stockholders." Garner, 430 F.2d at 1103. Rather, shareholders must establish good cause why the attorney-client privilege should not be invoked in a particular situation. Id. at 1104. Garner listed nine factors to be considered in determining whether good cause has been established:

[1] the number of shareholders seeking discovery and the percentage of stock they represent; [2] the bona fides of the shareholder; [3] the nature of the shareholders' claim and whether it is obviously colorable; [4] the apparent necessity or desirability of the shareholders having the information and availability of it from other sources; [5] whether, if the shareholders claim is of wrongful action by the corporation, it is of action criminal, or illegal but not criminal, or doubtful legality; [6] whether the communication related to past or to prospective actions; [7] whether the communication is of advice concerning the litigation itself; [8] the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; and [9] the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest for independent reasons.

Cox, 17 F.2d at 1414 (quoting Garner, 430 F.2d at 1104).

If, following consideration of these factors, the shareholders establish good cause for not invoking the attorney-client privilege, then the exception for organizational fiduciaries will be applied. Garner, 430 F.2d at 1104.

1.6:660   Invoking the Privilege and Its Exceptions

The attorney-client privilege is not automatic: it must be asserted whenever an opposing party seeks to discover or introduce protected information. 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 503.20[2] (Joseph M. McLaughlin ed., 2d ed. 2002). An assertion of the privilege is ordinarily made by objecting contemporaneously when an opposing party attempts to introduce a privileged matter. See Swain v. Terry, 454 So.2d 948, 954 (Ala. 1984). Failure to assert the privilege in this manner constitutes a voluntary waiver of the privilege. Swain, 454 So.2d at 954.

The attorney-client privilege may be asserted by "the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence." Ala. R. Evid. 502(c). Additionally, it is well established that the attorney can assert the privilege on behalf of his client provided that the attorney is authorized to act on the client's behalf. Id.

The burden of establishing the attorney-client relationship rests on the party asserting the privilege. Hunt v. State, 642 So.2d 999, 1034 (Ala. Crim. App. 1993). Once a party has established that the attorney-client privilege applies, the opposing party can assert a waiver or exception to the privilege. § 86 cmt. h. In the event that a waiver or exception is asserted, the burden shifts, and the party seeking to introduce the communication must now demonstrate that each essential element of the waiver or exception is satisfied. Id.

1.6:700 Lawyer Work-Product Immunity

  • Primary Alabama References: AL Rule 1.6
  • Background References: ABA Model Rule 1.6, Other Jurisdictions
  • Commentary: ABA/BNA § 91:2201, ALI-LGL §§ 87-93, Wolfram § 6.6
  • Alabama Commentary:

1.6:710   Work-Product Immunity

Work-product consists of tangible materials and their intangible equivalent "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative." Ala. R. Civ. P. 26(b)(3). When properly asserted, work product is protected from discovery or other compelled disclosure to the extent stated in subsections (B) and (C) of this section. Ala R. Civ. P. 26(b)(3); &#167; 87(3). The operative test for making a work product determination is whether the material in question can "fairly be said to have been prepared or obtained because of the prospect of litigation." <i>Ex Parte Cummings</i>, 776 So.2d 771, 774 (Ala. 2000). "The fact that a defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify evidence as being work product." <i>Id</i>. Rather, to qualify as work product, "the primary motivating purpose behind the creation of a document or investigative report must be to aid in possible future litigation." <i>Id</i> (quoting <i>Janicker v. George Washington Univ.</i>, 94 F.R.D. 648, 650 (D. D.C. 1982)).

1.6:720   Ordinary Work Product

Ordinary work product consists of all materials gathered in anticipation of litigation except the opinions or mental impressions of an attorney. § 87(2); See Ala. R. Civ. P. 26(b)(3). According to the Alabama Rules of Civil Procedure, ordinary work product is protected from discovery or compelled disclosure unless the opposing party: (1) has a substantial need for the materials in preparation for their case; and (2) is "unable without undue hardship to obtain the substantial equivalent of the materials by other means." Ala. R. Civ. P. 26(b)(3). Though there is no Alabama case law on the subject, comment b following § 88 of the Restatement of the Law Governing Lawyers states that "demonstrating the requisite need and hardship requires the inquiring party to show that the material is relevant to the party's claim or defense, and that the inquiring party will likely be prejudiced in the absence of discovery. § 88 cmt. b.

1.6:730   Opinion Work Product

Opinion work-product consists of the "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation." Ala. R. Civ. P. 26(b)(3). Rule 26(b)(3) gives absolute protection to an attorney's opinion work-product. Id. Such information will not be discoverable even if the opposing party has made the requisite showing of substantial need and undue hardship. Id.

1.6:740   Invoking Work-Product Immunity and Its Exceptions

Generally speaking, "the procedural requirements for invoking work-product immunity or asserting waiver or exception parallel [those] . . . for the attorney-client privilege." § 90 cmt. b. An assertion of work-product immunity must be made by promptly objecting to an opposing party's attempt to discover protected material. § 90(2). "The client, the client's lawyer, or another representative of the client may assert the immunity," and the asserting party bears the burden of establishing the elements of the work-product exception. § 90 cmt. a; Ala. R. Civ. P. 26(b)(3); Cummings, 776 So.2d at 774. "Once a claim of work-product has been adequately supported, a person entitled to invoke a waiver or exception must assert it and, if the assertion is contested, demonstrate each element of the waiver or exception." § 90(3).

1.6:750   Waiver of Work-Product Immunity by Voluntary Acts

Section 91 of the Restatement of the Law Governing Lawyers states:

Work product immunity is waived if the client, the client's lawyer, or another authorized agent of the client: (1) agrees to waive the immunity; (2) disclaims protection of the immunity . . . ; (3) fails to object properly to an attempt by another person to give or exact testimony or other evidence of work product; or (4) discloses the material to third persons in circumstances in which there is a significant likelihood that an adversary or potential adversary in anticipation of litigation will obtain it.

§ 91.

This section governing waiver of the work-product immunity closely parallels the law concerning waiver of the attorney-client privilege. However, because Alabama has no statute or case law directly adopting or rejecting this Restatement position, it is uncertain how state courts would rule concerning waiver of work-product immunity by voluntary acts.

1.6:760   Waiver of Work-Product Immunity by Use in Litigation

Section 92 of the Restatement states that the work-product immunity is waived if a witness injects the attorney's advice as an issue in the case or if a witness uses a recorded material to assist her in testifying. § 92. Again, Alabama has no applicable statute or case law. Therefore, it is unclear how Alabama courts would rule concerning waiver of work-product immunity by use in litigation.

1.6:770   Exception for Crime or Fraud

Section 93 of the Restatement states that:

Work-product immunity does not apply to materials prepared when a client consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or to aid a third person to do so or uses the materials for such a purpose.

§ 93.

This exception is virtually identical to the crime/fraud exception under the attorney-client privilege. As such, Alabama's adoption of the crime/fraud exception under the attorney-client privilege suggests that the state would also adopt the exception under the work-product doctrine. However, because there is no case law or statute directly adopting the crime/fraud exception for work-product immunity, it cannot be said with absolute certainty how an Alabama court would rule on the subject.