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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.

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District of Columbia Legal Ethics

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 1.6
· Background References: ABA Model Rule 1.6, Other Jurisdictions
· Commentary:

1.6:101      Model Rule Comparison

Both Model Rule 1.6 and its DC Rule counterpart were significantly modified in similar ways as a result of the comprehensive reviews conducted by the ABA Ethics 2000 Commission and the DC Rules Review Committee, respectively, and both were also amended to reflect a recommendation of the ABA Corporate Responsibility Task Force.  However, even after those changes, the two rules retain some fundamental differences.

The most important difference lies in the two rules' respective descriptions of just what it is that they protect from disclosure: the Model Rule protects, with specified exceptions, "information relating to representation of a client," while the DC Rule preserves the key operative terms of the predecessor provision in the Model Code, DR 4-101, "confidences" and "secrets." The Model Rule provides no definition of "information relating to representation of a client," while the DC Rule provides in 1.6(b) the identical definitions that were set out in DR 4-101: "confidence" is defined as information protected by the attorney-client privilege "under applicable law" and "secret" as "other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental to the client." The Model Rule prohibition extends to information "relating to" a representation whether acquired before, during or after the representation and apparently to information obtained from public sources, and the prohibition applies without regard to any client request or assessment by the lawyer of the likely effect on the client of a disclosure. This coverage is substantially broader than that of the predecessor Model Code provision. The breadth of coverage concerned the Jordan Committee and prompted it to borrow from DR 4-101 the narrower statement of what information, in addition to client confidences, the lawyer must hold close and not misuse.

Another difference, not changed in either of the respective reviews, is that DC Rule 1.6(a) prohibits, with specified exceptions, a lawyer not only from knowingly revealing client information but also from knowingly using it to the disadvantage of the client (a prohibition that in the Model Rules is found in a separate rule, MR 1.8(b), but without the qualifying "knowingly"), and from using it for the advantage of the lawyer or a third person (which is not explicitly dealt with in the Model Rules).  In the discussion below, "disclose" or "disclosure" will sometimes be used to encompass whatever "use" of information either body of rules forbids or allows.

The circumstances in which otherwise protected information may be disclosed, covered in Model Rule 1.6(a) and (b), are addressed by paragraphs (c), (d) and (e) of the DC Rule. Both Rules make exception, generally in different provisions and in somewhat different phraseology, for disclosure with client consent (DC Rule 1.6(e)(1); Model Rule 1.6(a)), when impliedly authorized in order to carry out the representation (DC Rule 1.6(e)(4); Model Rule 1.6(a)), to defend the lawyer against charges or claims relating to the client (DC Rule 1.6(e)(3); Model Rule 1.6(b)(5)), or to collect a fee (DC Rule 1.6(e)(5); Model Rule 1.6(b)(5)). Both also have an exception relating to prevention of reasonably certain death or substantial bodily harm (DC Rule 1.6(c)(1); Model Rule 1.6(b)(1)), although the DC Rule limits this exception to circumstances where the threat is presented by criminal acts, a restriction dropped from the Model Rule per the Ethics 2000 Commission's recommendation. 

Additionally, both Rules had added to them pursuant to the recommendation of the ABA Corporate Responsibility Task Force exceptions to prevent a client crime or fraud reasonably certain to result in substantial injury to the financial interests or property of another, or to prevent or mitigate such injury, when the lawyer's services have been employed in connection therewith (DC Rule 1.6(d)(1)&(2); Model Rule 1.6(b)(2) & (3)). This addition eliminated a certain discordance between both Rules, which prior to the amendments had forbidden disclosure of covered information relating to client misconduct that was likely to injure financial interests or property of others, and the SEC's regulations governing lawyers' conduct, implementing a requirement of the Sarbanes-Oxley law, 17 CFR Part 5, which permitted (but did not require) lawyers to disclose client confidences relating to under specified circumstances.

Both Rules also had added to them exceptions to allow a lawyer get legal advice about the lawyer's conduct (DC Rule 1.6(e)(6); Model Rule 1.6(b)(4)), with the Model Rule but not the DC provision limited to advice about compliance with the Rules. This new provision of the DC Rule is consistent with the holding of Jacobs v. Schiffer, 47 F. Supp. 16, 21 (D.D.C. 1999), rev'd and remanded on other grounds, 204 F. 3d 259 (D.C.Cir. 2000), where the District Court construed DC Rule 1.6 to allow a lawyer to disclose client confidences in order to obtain legal advice concerning the lawyer's ethical obligations.

Pursuant to an Ethics 2000 Commission recommendation, Model Rule 1.6 was amended to add an exception for disclosure to comply with other law or court order (Model Rule 1.6(b)(6)); the DC Rule already had a similar provision, in what is now designated as 1.6(e)(2)(A). The DC Rule also has two other provisions allowing disclosure that are not found in the Model  Rule: one allows it to prevent bribery or intimidation of witnesses, jurors, court officials or others involved in proceedings before a tribunal (DC Rule 1.6(c)(2)); the other, applicable only to government lawyers, allows disclosure when permitted or authorized by law (DC Rule 1.6(e)(2)(B)).

The DC Rule also has several further provisions not found in the Model Rule.

DC Rule 1.6(f) requires a lawyer to exercise reasonable care to prevent employees, associates and others whose services are used by the lawyer from disclosing client information. Model Rules 5.1 and 5.3, like DC Rules 5.1 and 5.3, address generally supervisory responsibilities of lawyers and may cover all the ground that DC Rule 1.6(f) covers.

DC Rule 1.6(g) states that the lawyer's obligation to preserve the client's confidences and secrets continues after termination of the lawyer's services.

DC Rule 1.6(h) provides that the duty of confidentiality applies to information a lawyer learned before becoming a lawyer in providing assistance to another lawyer. See 1.6:260 below.

DC Rule 1.6(i) makes the strictures of Rule 1.6 applicable to information acquired by a member of the DC Bar Lawyer Counseling Committee or a "trained intervenor" for that Committee in the course of counseling another lawyer. 

Similarly, DC Rule 1.6(j), added by the DC Court of Appeals effective May 1, 1998, on the recommendation of the DC Bar, extends the Rule's protection as "confidences and secrets" to communications between persons serving the DC Bar Lawyer Practice Assistance Committee and lawyers being counseled by that Committee.  Model Rule 8.3(c) concerns information gained by a lawyer or judge as a member of an approved lawyers assistance program. To the extent that such information would be confidential if communicated by client to lawyer in a privileged setting, the lawyer or judge is relieved by MR 8.3(c) of what would otherwise be an obligation to report certain violations of the Rules under MR 8.3(a). DC Rule 8.3(c) states more broadly that the obligations of Rule 8.3 to report misconduct do not require disclosure of information protected by Rule 1.6.  [See 8.3:400 below.]

DC Rule 1.6(k) (which was proposed by the Sims Committee) states that the client of a government lawyer is the agency that employs the lawyer absent express provision to the contrary in law, regulation or order.

Rule 1.6(k) (then designated 1.6(j)) was mentioned in DC Ethics Opinion 313 (2002) (discussed more fully under 1.11:200, below), addressing the applicability vel non of Rule 1.11 to a former Navy JAG officer representing a court martial defendant he had also represented while in service.

1.6:102      Model Code Comparison

Paragraphs (a) and (b) of DC Rule 1.6, limiting the Rule's reach to "confidences" and "secrets," and defining those terms, are substantially identical to DR 4-101(A) and (B). Paragraph (c), whose provisions are described in 1.6:101 above, differs substantially from DR 4-101(C)(3), which permitted a lawyer to reveal a client's confidences or secrets when the client had an intention to commit any crime. Subparagraphs (d)(1) and (2) are substantially identical to DR 4-101(C)(1) and (2), except that the Disciplinary Rule did not contain the reference to government lawyers. Subparagraph (d)(3) is similar to, but more limited than, DR 4-101(C)(4), which permitted a lawyer to disclose client confidences or secrets "to the extent necessary to defend himself or an employee against an accusation of wrongful conduct." [See 1.6:101 above.] DR 4-101 did not contain the concept of implied authorization contained in subparagraph (d)(4). Subparagraph (d)(5) is the same as DR 4-101(C)(4), except that the new rule adds the phrase "to the minimum extent necessary" when referring to the exception allowing a lawyer to reveal a client's confidences or secrets in an action to establish or collect lawyer fees. Paragraphs (e) and (f) have no counterparts in the Model Code, although these concepts were reflected in the Ethical Considerations. Paragraphs (g), (h) and (i) are all provisions without antecedent in the Model Code.

1.6:200   Professional Duty of Confidentiality

· Primary DC References: DC 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

[The discussion of this topic has not yet been written.]

1.6:210      Definition of Protected Information

The DC Rules retain the terms "confidences" and "secrets" which were dropped in the Model Rules. Confidences are information protected by the attorney-client privilege. Secrets are

other information gained in the professional relationship that the client has requested to be held inviolate, or the disclosure of which would be embarrassing, or would be detrimental to the client.

Comment [5] to DC Rule 1.6 acknowledges that confidentiality is given effect through legal doctrine defining the attorney-client privilege and work product immunity. It admonishes that the Rule is not intended to cover or affect how judges interpret those two bodies of law. The definition of "confidences" is important when evidence is sought from a lawyer through compulsion of law since only matters within the attorney-client privilege or work-product doctrine can be protected in that situation.

The duty to protect secrets applies to a much broader range of material than confidences and in a broader range of circumstances. Comment [6] to DC Rule 1.6 states explicitly that secrets need not be communicated in confidence by the client. The Comment goes on to say that secrets, unlike confidences, exist "without regard to the nature or source of the information or the fact that others share the knowledge." The Comment justifies this scope by explaining that it reflects "not only the principles underlying the attorney-client privilege, but the lawyer's duty of loyalty to the client."

The “secrets” protected by DC Rule 1.6 played a role in the determination of whether a defendant convicted in a criminal case might have a valid claim of ineffective assistance of counsel in McCrimmon v. United States, 853 A.2d 154 (DC 2004).  The ineffective assistance claim rested on the fact that the defendant’s court-appointed counsel had had a conversation with a man who was interested in retaining him in an unrelated criminal matter, who turned out to have been involved in the crime in which the defendant was involved and had pled guilty and become a “crucial” prosecution witness in the defendant’s trial. The legal issue was whether by reason of that conversation, defendant’s counsel had an “actual conflict” within the meaning of Cuyler v. Sullivan, 446 U.S. 335 (1980). On appeal, the Court of Appeals reasoned that information the witness had imparted to the lawyer in that conversation would not be protected by the attorney-client privilege, since the witness had waived that privilege by admitting his guilt in a plea bargain, and had told the prosecutor the information that might be used in impeaching him as a witness. The Court also noted, however, that that information would constitute “secrets” within the meaning of DC Rule 1.6, both by embarrassing the witness and possibly by prejudicing him as well. 853 A.2d at 163. In addition, the Court observed that Rule 1.7(b)(4) might also apply, since it prohibits a lawyer from representing a client in a matter in which the lawyer’s judgment may be affected by duties to other parties unless the client consents. Id.  The Court remanded the case to the trial court for a determination of whether the defendant’s lawyer believed that he was ethically restrained in cross-examing the witness; if so, its impact, if any, on the defendant’s consent, and whether it afffected the defensive strategy in the cross-examination, so as to have created an “actual conflict” resulting in ineffective assistance of counsel.

In Herbin v. Hoeffel, 806 A.2d 186 (DC 2002), the Court addressed a claim resting on allegations that a lawyer in the DC Defender Service had sent to Virginia Law enforcement officials a confidential pre-sentence report from a criminal case in which the plaintiff had been involved, enabling the officials to serve a search warrant on the plaintiff which resulted in "physical pain and suffering and emotional damage." Considering only the claim on its face, in the context of an appeal from a dismissal for failure to state a claim on which relief could be granted, the Court held that the allegations stated a claim for breach of fiduciary duty by the defendant lawyer in disclosing client "secrets" (as defined in Rule 1.6), and that such a disclosure would be sufficiently serious to constitute "extreme and outrageous conduct," and thus to support a damage claim for infliction of emotional distress.

A subsequent decision in this case, three years later, in Herbin v. Hoeffel, 886 .2d 507 (DC 2005), finally disposed of all of the plaintiff’s claims against the defendants. All of those claims rested on the premise that the lead defendant, a lawyer in District of Columbia Public Defender Service, had represented the plaintiff in a professional capacity, so that her disclosure of unfavorable  information about him to the Virginia authorities violated her professional obligations to him in various ways. This dispositive decision by the Court of Appeals affirmed the trial court’s decision granting summary judgment to the defendants on the ground that there had never been a lawyer-client relationship between the parties.

In In re Gonzalez, 773 A.2d 1026 (DC 2001), the respondent lawyer, in a motion to withdraw from representation of a client in a proceeding before a Virginia court, accused the client of missing appointments, failing to provide necessary information and making misrepresentations to him as her attorney. The client complained to DC Bar Counsel. Applying the choice of law provision of DC Rule 8.5(b)(1), the DC Board on Professional Responsibility looked to the Virginia ethics code and found the respondent had disclosed a client's "secrets," in violation of DR 4-101(A) of the Virginia Professional Responsibility Canons. (That provision defined "secret" in terms identical to those of DC Rule 1.6(b), as referring to "information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.") The Hearing Committee had been of the view that the information here disclosed was not "information gained in the professional relationship" because it hadn't come to the respondent as a result of his fact-gathering," but the Board gave that language a broader reading and the Court of Appeals agreed.

In DC Ethics Opinion 246 (Revised) (1994), the inquiring lawyer represented a client in a malpractice action against the client's former lawyer. The conduct alleged to constitute malpractice included conduct that may have violated a rule of professional conduct and raised a substantial question of the previous lawyer's honesty, trustworthiness or fitness to practice so as to require a lawyer with knowledge of the conduct to report it pursuant to DC Rule 8.3(a). The inquirer said that to subject the previous lawyer to a disciplinary proceeding could adversely affect that lawyer's ability to satisfy a judgment in the malpractice action and thus be detrimental to the client. The Opinion concluded, first, that knowledge of the previous lawyer's conduct, acquired by the inquirer in the course of the malpractice representation and having the potential to be detrimental to the client, was a "secret" within Rule 1.6; second, that the disclosure of the conduct in the malpractice action, on the client's authorization, did not necessarily constitute a waiver of the protection of Rule 1.6; and, third, that, in the absence of client consent to further revelation, under Rules 1.6 and 8.3(c) the inquirer need not and indeed could not report the previous lawyer's conduct. The Committee, in a footnote, recognized that in a much-discussed case, In re Himmel, 533 N.E.2d 70 (Ill. 1988), the Illinois Supreme Court reached a contrary result but noted that the misconduct reporting rule in that state exempted only "privileged information." Opinion 246, n.4.

A client's identity may be information protected by Rule 1.6. See DC Ethics Opinions 214 (1990), 124 (1983). So may the fact of the representation; see DC Ethics Opinion 138 (1984).

The Legal Ethics Committee also has opined that redaction of a client's name from documents may be insufficient to protect client confidences and secrets that could be revealed by identifying facts in the documents. DC Ethics Opinion 223 (1991).

DC Ethics Opinion 266 (1996) states that knowledge of a client's whereabouts may be a confidence or a secret under DC Rule 1.6.

DC Ethics Opinion 14 (1976) holds that the attorney's duty to protect a client's confidences and secrets extends to lawyer work product.

DC Ethics Opinion 99 (1981) says that, if there is a "colorable basis" for asserting that statements were made in the course of the attorney-client relationship, the lawyer must resolve the question in favor of the existence of the relationship and in favor of preserving confidentiality. The opinion goes on to say:

The colorable basis standard obtains even when -- as here -- the lawyer's personal view is that the attorney/client relationship either never e[x]isted or was terminated prior to the disclosure at issue.

This view was restated in DC Ethics Opinion 186 (1987).

Two ethics opinions have identified material that is not a confidence or secret protected by Rule 1.6 and its predecessor. DC Ethics Opinion 217 (1991) notes that a body of knowledge possessed by a firm's lawyers that includes general terms on which disputes before a tribunal have been resolved "as distinguished from the fact that a particular entity accepted particular terms" may not be a secret within the meaning of Rule 1.6. In discussing rules regarding simultaneous representation, DC Ethics Opinion 175 (1986) says that a legal theory developed by a lawyer while retained by a client is not a "client secret." The Committee found that DR 4-101 was not

intended to preclude the subsequent use of legal ideas developed or acquired while retained by a client, even when such use of those ideas will adversely affect the former client.

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

DC Rule 1.6(a) prohibits a lawyer not only from revealing a confidence or secret of the lawyer's client but also from using such information to the disadvantage of the client or for the advantage of the lawyer or of a third person (unless permitted by another provision).

DC Rule 1.6(e) requires a lawyer to exercise reasonable care to prevent the lawyer's "employees, associates and others whose services are utilized by the lawyer" from improperly using information protected by the rule. Comment [10] gives detail on sharing of information within a firm and consultation with other lawyers. Comment [11] permits giving "limited information. . . to an outside agency necessary for statistical bookkeeping, accounting, data processing, banking, printing, or other legitimate purposes." The lawyer, however, must exercise "due care in selection of an agency" and warn the agency that the information must be kept confidential.

DC Rule 1.6(f) admonishes that the duty to preserve confidences and secrets continues after termination of the lawyer's employment.

DC Rule 1.6(g) reminds that the confidentiality duty applies to information learned prior to becoming a lawyer if the information was obtained "in the course of providing assistance to another lawyer."

Jacobs v. Schiffer, 47 F. Supp. 2d 16 (DDC 1999), rev'd on other grounds, 204 F.3d 259 (DC Cir. 2000) held that a government lawyer seeking advice of his personal counsel as to his rights and obligations, personally and professionally, and as a potential whistleblower, does not violate DC Rule 1.6(a) by disclosing to his counsel information relevant to that advice even though such information consists of confidences or secrets of the lawyer's governmental client. In so holding, the Court rejected a contention that such disclosure is governed by Comment [10] to the Rule, which states that, absent client consent, a lawyer should not "seek counsel from another lawyer if there is a reasonable possibility that . . . the client's confidences or secrets would be revealed to such lawyer." The Court found this Comment inapposite because it is addressed to a lawyer seeking advice of another lawyer in furtherance of the client's interests, not the lawyer's own. 47 F. Supp. 2d at 20. And, more broadly, the Court concluded that the prohibition of Rule 1.6(a) against unconsented disclosure of client confidences and secrets was not invoked at all by communications from the lawyer to his personal counsel:

[A] government lawyer does not, under Rule 1.6, "reveal" his client's confidences and secrets when he discloses to his personal attorney -- with the express understanding that the information will go no further -- only those confidences and secrets that the latter needs in order to advise the government lawyer of his rights and obligations as a possible whistleblower. The personal attorney becomes, in practical effect, simply a learned alter ego of the government lawyer and equally duty-bound to treat the confidences and secrets of the government lawyer's client as his own.

Id. The fundamental propositions set forth in this passage presumably apply also, mutatis mutandis, to nongovernmental lawyers seeking counsel about their personal and professional obligations in connection with representations they have undertaken.

Also involved in the case was an issue as to whether the government lawyer/plaintiff had a constitutional right to share, without pre-disclosure clearance by the agency, the nonpublic information he possessed with lawyers at "public interest and professional organizations committed to civil rights, whistleblower rights, government accountability, and environmental enforcement." Id.. at 23. On this issue, the Court held that in the circumstances a pre-disclosure requirement

does not infringe . . . [plaintiff's] constitutional rights insofar as it may inhibit disclosure of nonpublic information to unspecified individuals of unnamed public-interest organizations.

Id.. Although the Court did not specifically address Rule 1.6 in this connection, it did observe that

Such disclosure would greatly increase the risk of harm to the agency's legitimate interests while affording [plaintiff], for present purposes, simply the opportunity to shop the case, which is hardly a sine qua non of adequate legal advice.

In In re Gonzalez, 773 A.2d 1026 (2001), discipline was imposed on the basis of disclosures made in connection with a lawyer's motion for leave to withdraw from representation of a client whom the lawyer accused of failing to pay fees and otherwise cooperate. The motion, and copies of letters attached thereto, had asserted that the client had not only missed appointments and failed to provide necessary information, but also made misrepresentations to the lawyer. The court agreed with the Board on Professional Responsibility that while these assertions did not disclose "confidences", they did disclose "secrets" as those terms were defined in Virginia's then counterpart of D.C. Rule 1.6(b); and observed --

We think it obvious that a public allegation by a client's own lawyer that the client deliberately lied to him would be 'embarrassing' to the client and "would be likely to be detrimental" to her, within the meaning of [the rule].

Id. at 1029. The Court also rejected a contention that the information in question should not be deemed to be "information gained in the professional relationship" between the lawyer and the client. Id.

DC Ethics Opinion 296 (2000) [which is more fully discussed under 1.7:330, below] addressed a situation where a law firm jointly represented an employer and its alien employee in seeking a visa for the employee, without any advance understanding as to whether client confidences with respect to the representation would be shared, and where the employee reported in confidence the information that she had fabricated the credentials on which the visa had been based. The Opinion held that absent explicit consent of the employee, Rule 1.6 forbade the firm to disclose the falsification to the employer, even though as a result the employer client was left employing a dishonest worker whose visa had been obtained pursuant a petition signed by the employer under penalty of perjury. The Opinion asserted that the firm must withdraw from its representation of both; could provide no more by way of explanation than stating that it had also withdrawn from representation of the client and identifying the ethical provision that required withdrawal; and that it might make the withdrawal "noisy" by disaffirming the visa petition (which the firm had signed), but only if there was a reasonable likelihood of harm resulting from future reliance on the false petition.

DC Ethics Opinion 327 (2005) [which is more fully discussed under 1.7:330, below] addressed a situation where a law firm jointly represented several clients under retainer agreements that expressly provided that information disclosed in connection with the representation “may be shared” with the law firm’s other clients in the same matter.  The Opinion stated that if one client informs its lawyer before disclosing confidential information that he or she intends to reveal something that may not be shared with the law firm’s other clients, the lawyer must explain that it cannot keep such confidences, and can generally withdraw from representing the disclosing client.  However, if the client discloses the information, the lawyer has an affirmative obligation to the non-disclosing clients to disclose information that might affect their interests in the matter.

DC Ethics Opinion 297 (2000) [which is more fully described under 1.11:200, below] pointed out that where a former government lawyer's representation of a private client in connection with a matter in which the lawyer participated while in government is not barred by the post-employment prohibition in Rule 1.11, it may nonetheless face an obstacle by reason of the lawyer's possession of relevant confidences or secrets of the governmental client which cannot, absent government consent, be disclosed or used in the private representation; and (again absent governmental consent) that obstacle may become a barrier to any representation, under Rule 1.7(b)(2), if the lawyer's inability to disclose or use the information would adversely affect the representation of the private client.

DC Ethics Opinion 303 (2001) [which is more fully discussed under 7.1:220 below] addresses the ethical rules affecting the sharing of office space by unaffiliated lawyers, including in particular the need to take appropriate measures to protect client confidences and secrets.

DC Ethics Opinion 306 (2001) [which is more fully discussed under 5.7:200 below], which addressed the ethical responsibilities of a lawyer who is also a licensed insurance broker, pointed out that the lawyer's obligations of confidentiality under Rule 1.6(a) might be an obstacle to the lawyer's selling insurance products to the client, since information protected by that obligation could be relevant to the insurer's evaluation of the proposed transaction.

DC Ethics Opinion 290 (1999) addressed an inquiry by a law firm that defends insureds and is paid by their insurer to do so, as to its obligations of confidentiality in dealing with an outside agency retained by the insurer to audit its legal bills. The Opinion held that under both Rule 1.6 and Rule 1.8(e)(3) of the D.C. Rules (the latter corresponding to MR 1.8(f)(3)), a lawyer so retained may not, absent consent of the client insured, disclose information relating to the representation that is either a "confidence" or a "secret" protected by Rule 1.6 to the insurer, or a fortiori, to an auditor retained by the insured.

DC Ethics Opinion 282 (1998) [more fully discussed under 1.6:320, below] addressed the problem presented by the conflict between a lawyer's duty under DC Rules 1.6(e) and 5.3 to see that non-lawyer collaborators preserve client confidences and secrets, and the statutory duty imposed on a social worker collaborator to report suspected child abuse or neglect.

DC Ethics Opinion 275 (1997) held that a law firm that had been contacted by a potential class action plaintiff and received confidential information about the action from the potential client could not, after the firm and the potential client had failed to reach agreement on the terms of the engagement, seek to identify another client to represent in the same or substantially related matter. In this instance, the information furnished to the firm by the potential client included numerous materials that the latter had assembed with a view to pursuing the claim -- some of them publicly available, and others not. The potential client had emphatically stated, in writing, that he expected the firm to hold the materials he provided in confidence; and the Legal Ethics Committee observed that this made them all "secrets" within the meaning of DC Rule 1.6(b), whether or not they were matters of public record. The Committee further pointed out that even though the claimant had not become a client of the firm, a lawyer's confidentiality obligations begin as soon as a potential client consults with a lawyer, per Comment [7] to DC Rule 1.6. The Opinion went on to point out that although lawyers in the firm who had received the confidential information from the potential client would be so barred by Rule 1.6, nonetheless under DC Rule 1.10(a) (as amended effective November 1, 1996), disqualification of a lawyer under such circumstances would not be imputed to the lawyer's firm if that lawyer were effectively screened from any matter as to which the lawyer was disqualified. In the present instance, however, the Opinion concluded that this escape hatch would not be available to the inquiring law firm, since "too many lawyers (virtually the whole litigation section) had been exposed to the potential clients' confidential confidential information, and too many discussions around the firm had occurred before the firm broke off its negotiations with the potential client to make walling-off a practical and effective solution."

In United States v. Bruce, 89 F.2d 886 (DC Cir 1996), the Court addressed a criminal defendant's claim that his court-appointed lawyer had had a conflict that resulted in his rendering ineffective assistance by reason of the lawyer's having disclosed to the trial judge, in an ex parte hearing, in which he was seeking to be relieved of the appointment to represent the defendant, that the defendant had insisted that he lie to the court. The Court observed that the lawyer had probably violated Rule 1.6 in making this disclosure to the trial court, but held the disclosures did not make the lawyer's assistance ineffective because there was no showing that the quality of the lawyer's representation of the defendant was adversely affected.

DC Ethics Opinion 281 (1986) addressed the issue, much mooted in the opinions of other ethics committees, of the ethical propriety of transmitting by unencrypted e-mail information protected by Rule 1.6. The Opinion concluded, contrary to some of those other opinions, that use of unencrypted electronic mail is not, by itself, a violation of Rule 1.6. This conclusion rested on three considerations that earlier opinions to the contrary were said to have overlooked. The first factor was that all methods of transmitting information are in some degree subject to interception, and the Rule does not require absolute assurance but only reasonable efforts to maintain confidentiality. The second was that information travelling over the Internet is disassembled in transit, and therefore extremely difficult to intercept. Third and finally, interception of electronic communications over the Internet, Like telephone conversations, is illegal under the Electronic Communications Privacy Act of 1986 as amended in 1994, 18 U.S.C. §2511(1); moreover, that Act provides, in 18 U.S.C. §2517(4) that no otherwise privileged communication intercepted in violation of the Act will thereby lose its provileged character. The Opinion went on to note that it may be necessary in certain circumstances to use extraordinary means to protect client confidences.

DC Ethics Opinion 312 (2002) (which is more fully discussed under 1.9:300, below) addresses the question of what information may or may not be disclosed for purposes of conflicts checks when a lawyer moves between firms. DC Ethics Opinion 273 (1997) (discussed more fully at 1.4:200, above) addresses more generally the issues raised by the movement of lawyers between firms.

DC Ethics Opinion 256 (1995) principally concerns the duties of a lawyer who receives a document containing an opposing client's confidences or secrets sent by that client's lawyer by mistake. The Opinion also deals with the possibility that the "sending" lawyer has violated, among others, Rule 1.6(a). The Committee noted that Rule 1.6(a) provides that a lawyer shall not "knowingly" reveal or misuse a client confidence or secret and thus a truly inadvertent, merely negligent, failure to safeguard does not violate Rule 1.6. The Opinion warns, however, that DC Rules 1.6(e), 5.1(b), and 5.3(b) regarding duties to supervise others on the care to be taken with protected information might be implicated. If the disclosure resulted from the lawyer's inadvertence alone, a question could be raised under Rule 1.1 (Competence).

DC Ethics Opinion 223 (1991) said that a federally funded legal services support center has a duty to resist turning over client log forms and notes and correspondence regarding assistance to field attorneys on cases. Redaction was considered insufficient to protect client confidences and secrets in some instances.

DC Ethics Opinion 214 (1990) says that a client's being in arrears in payment does not relieve a firm of its obligation to resist disclosure of a client's identity in response to an Internal Revenue Service summons.

The following Ethics Opinions were decided under the predecessor DR 4-101 but should remain pertinent.

DC Ethics Opinion 158 (1985), stated the proposition, now incorporated in DC Rule 1.6(f), that the duty of confidentiality survives the termination of the lawyer-client relationship. See also the discussion of DC Ethics Opinion 273 (1997), under 1.4:200, above (addressing the confidentiality obligations of a lawyer changing firms).

DC Ethics Opinion 324 (2004) states the proposition that the duty of confidentiality extends beyond the death of the client.  The Opinion addresses an lawyer’s obligations when a spouse who is executor of a deceased spouse’s estate requests documents and files retained by the lawyer in connection with its representation of the decedent.  The Opinion states that the lawyer may provide the information to the spouse/executor (i) if the information is not a confidence or secret, or, (ii) if it is a confidence or secret and the lawyer has reasonable grounds for concluding that the release of the information is impliedly authorized to further the deceased client’s interests in settling the client’s estate.

DC Ethics Opinion 96 (1980) says that the duty to retain client confidences and secrets after a lawyer-client relationship ends governs even the conduct of a lawyer not acting as a lawyer. Thus, a lawyer employed by a corporation who worked on its defense against a government antitrust claim could not, after leaving the corporation's employ and becoming a computer consultant, provide litigation support to law firms representing private clients suing the former employer on substantially related antitrust claims.

DC Ethics Opinion 148 (1985) discussed whether a duty of confidentiality arose with respect to communications by an employee of a government agency with a government lawyer. The Opinion concluded that the government lawyer who advises a government employee on the employee's official duties does not have an attorney-client relationship with the employee that gives rise to a duty not to reveal the employee's confidences to the agency.

DC Ethics Opinion 137 (1984) concerned duties of lawyer spouses whose legal employment might bring them into conflict. It primarily addressed DR 5-101 and DR 9-101 but commented as follows regarding DR 4-101:

We believe that it is enough simply to remind lawyers of their professional responsibilities in this regard. We see no reason to assume that a lawyer who is married will violate his professional responsibilities any more when the other spouse is an attorney than when the spouse is not.

DC Ethics Opinion 128 (1983) stated that a lawyer may not donate papers to a university archive if they contain confidences or secrets of clients unless the clients have consented.

DC Ethics Opinion 99 (1981) [see 1.6:210] set out a "colorable basis" test, requiring a lawyer to resolve questions whether confidential information was received in an attorney-client relationship in favor of the client even if the lawyer's personal view is that the information is not protected.

DC Ethics Opinion 92 (1980) set out guidelines for safeguarding confidential information for lawyers volunteering in the DC Corporation Counsel's office.

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

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

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

DC Ethics Opinion 230 (1992) ruled that a lawyer retained to represent a trust represents the trust and not any particular trustee. The Opinion said that Trustee B therefore was entitled to know about communications between the inquiring lawyer and B's co-trustee A during the time they were co-trustees, but that the inquirer could not reveal to B communications with A that were had after B was no longer a co-trustee.

The following opinions were decided under the predecessor Code but probably remain relevant.

In DC Ethics Opinion 94 (1980), the salaried general counsel of a trade association asked whether he could take on the representation of a related educational association with fees going to the trade association. The Committee answered affirmatively but said that either the educational association would have to agree in advance that its confidences and secrets could be shared with the trade association or the trade association would have to stipulate in advance that the inquirer did not have to share with it confidences and secrets of the educational association.

The inquirer in DC Ethics Opinion 14 (1976) represented a corporate client and had formerly represented an officer of the corporation in that officer's individual capacity. The corporation had waived the attorney-client privilege as to documents subpoenaed by a grand jury. The Opinion ruled that the lawyer could disclose documents applying only to the corporate client but could not disclose anything related to the former individual client without that client's consent. The Opinion warned of the dangers of joint representation, which "frequently if not invariably . . . intertwine the interests of the joint clients."

1.6:250      Information Imparted in Lawyer Counseling Programs

DC Rule 1.6(h) makes special provision for lawyer counselling programs, providing both that they shall be deemed to create a lawyer-client relationship between counsellor and counselee and that communications in the course of and associated with such counselling shall be treated as confidences or secrets under paragraph (b). Similar provision is made in DC Rule 1.6(i) for communications made in the course of the DC Bar Law Practice Assistance Program. These provisions are explained in Comments [30]-[38]. A parallel but more limited provision in the Model Rules offering protection to confidential information imparted in connection with lawyer protection programs is found in MR 8.3(c). [See 8.3:400]

1.6:260      Information Learned Prior to Becoming a Lawyer

Paragraph (g) of DC Rule 1.6 spells out a point that is probably implicit in the counterpart Model Rule: namely, that a lawyer has an obligation of confidentiality with respect to confidences and secrets learned prior to becoming a lawyer but in the course of providing assistance to another lawyer -- as a summer associate, for example (or a law clerk, or paralegal, or secretary). DC Rule 1.10(b) includes language (not found in the Model rule) making clear, however, that the disqualification of the individual lawyer in such circumstances is not imputed to the lawyer's colleagues -- a provision of substantial benefit to firms that are subject to the DC Rules. See also Comment [21] to DC Rule 1.10.

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

· Primary DC References: DC Rule 1.6(c) & (d)
· Background References: ABA Model Rule 1.6, Other Jurisdictions
· Commentary: ABA/BNA § 55:101, ALI-LGL §§ 59-66, Wolfram §§ 6.4, 6.7

DC Rule 1.6(c) says a lawyer may reveal client information (1) to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent the lawyer's disclosure or (2) to prevent bribery or intimidation of witnesses, jurors, court officials, or other persons in proceedings before a tribunal if the lawyer believes disclosure will prevent the act. DC Rule 1.6(d) says a lawyer may use or reveal information: (1) with client consent; (2) when permitted by the rules, law or court order or when use or revelation by a government lawyer is permitted or authorized by law; (3) to defend against a charge of wrongdoing; (4) when impliedly authorized by a client; and (5) regarding collection of a fee. Each of these includes qualifying language admonishing that disclosure be kept to the minimum necessary to accomplish the purpose.

DC Ethics Opinion 259 (1995) noted that Rule 1.6(c), allowing a lawyer to reveal client information to prevent a crime likely to result in death or substantial bodily harm, differed from the former DR 4-101(C)(3), which allowed revelation of the intent of a client to commit any crime and the information necessary to prevent it. Thus, in the absence of a law requiring a lawyer for a fiduciary to disclose client information to prevent wrongdoing that would harm a beneficiary financially, see Rule 1.6(d)(2)(A), the lawyer for the fiduciary could not make such a disclosure.

DC Ethics Opinion 324 (2004) [discussed in detail under 1.6:220] explains that Rule 1.6(d)(4) would authorize a lawyer’s disclosure to a deceased client’s spouse/executor of the client’s information that furthers the client’s interest in settling the client’s estate.

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

DC Rule 1.6(d)(1) says that a lawyer may use or reveal client confidences or secrets with client consent but only after full disclosure.

However, DC Ethics Opinion 309 (2001) (more fully discussed under 1.7:240, below) warns that waivers permitting the adverse use or disclosure of confidential information may not be implied from advance waivers of conflicts of interest.

DC Rule 1.6(d)(4) says that a lawyer may use or reveal client confidences or secrets when the lawyer has "reasonable grounds" to believe the client has "impliedly authorized disclosure." Comment [9] gives the example of admitting facts in litigation that cannot be disputed and by making a disclosure in negotiation that facilitates a satisfactory conclusion.

Comment [10] terms it a "matter of common knowledge" that a law office exposes client information to nonlawyer employees and cautions the lawyer to exercise care in hiring and training such employees. The comment also reminds lawyers that a confidentiality obligation to multiple clients requires consent of all. It also says there should be client consultation before associating with another lawyer and that advice should not be sought from another lawyer, without client consent, if there is a possibility that the client's identity or confidence or secrets would be revealed.

Comment [11] acknowledges that a lawyer may give limited information to outside agencies that provide such services as statistical, bookkeeping, accounting, data processing, banking, printing and other legitimate purposes. The lawyer is cautioned to exercise due care in selecting the agency and to warn the agency that the information must be kept confidential.

DC Ethics Opinion 299 (2000) [which is discussed more fully under 1.6:495, below] suggested that a former corporate officer seeking to obtain consent of a corporation that had ceased to operate to disclosure by its former counsel of information subject to the attorney-client privilege, might be able to petition a court to appoint a receiver or trustee for the corporation to decide whether to exercise the corporation's right to consent to disclosure of the information.

1.6:320      Disclosure When Required by Law or Court Order

DC Rule 1.6(d)(2) permits use or revelation of client confidences and secrets when "required by law or court order," and by a government lawyer when "permitted or authorized by law." Comment [26] says a lawyer may comply with "final orders of a court or other tribunal of competent jurisdiction." (The corresponding Model Rule 1.6, Comment [20] says the lawyer must comply.) The DC Comment also says that the lawyer "should not comply" until the lawyer has made "every reasonable effort to appeal the order or has notified the client of the order and given the client the opportunity to challenge it."

Adams v. Franklin, 924 A.2d 993 (DC 2007) involved a discovery dispute turning on the extent to which the ethical obligation of confidence imposed on a lawyer by DC Rule 1.6 prevented the defendant from eliciting from the plaintiff’s former counsel on deposition four items of information about a demand letter that the lawyer had sent to the defendant on the plaintiff’s behalf.  These four bits of information were (1) whether the letter was genuine, (2) whether the former counsel had sent the letter, (3) whether he had represented the plaintiff at the time, and (4) where the lawyer had learned of the information set out in the letter.  The trial court had held that all of this information was subject to discovery, and the plaintiff appealed.  The Court of Appeals held that although the first three items of information might be protected as “secrets” as that term is defined in DC Rule 1.6(b), that protection was subject to an exception when disclosure was required by a court order, under what is now DC Rule 1.6(e)(2)(A), and as explained in what is now Comment [28]. Although the Court recognized that if the information in dispute had constituted a “confidence” under DC Rule 1.6, then its protection might not be so readily overridden by court order, but held that none of the first three items of information sought involved communications between the plaintiff and the lawyer; so as to meet a basic requirement of the privilege; and as to the fourth item, involving information as to where the lawyer had learned the information stated in the demand letter, no privilege applied because whatever information the plaintiff had communicated for the purpose of inclusion in the demand letter could not have been intended to be kept in confidence.

DC Ethics Opinion 288 (1999) addressed the potential problems under Rule 1.6 that are faced by a lawyer in responding to a Congressional subpoena calling for the production of documents pertaining to the representation of a current or former client and containing confidences or secrets that the client does not wish to have disclosed. The Opinion held that the lawyer has a professional responsibility to seek to quash or limit the subpoena, on all available grounds, but recognized that, if the Congressional body issuing the subpoena overrules such motions and threatens to hold the lawyer in contempt, there is no mode of review available to the lawyer and at that point disclosure is "required by law" within the meaning of DC Rule 1.6(d)(2)(A). The Opinion also pointed out that the lawyer should consult with the client about the possibility that the client might, through other counsel, seek a court order enjoining the lawyer from complying with the subpoena.

DC Ethics Opinion 282 (1998) addressed a problem potentially presented when a lawyer engages a social worker to provide services in connection with the representation of a client. The problem arises from the fact that DC Code § 2-1352 imposes upon social workers and certain other professionals (but not lawyers), when they reasonably suspect that child abuse or neglect has taken place, to report the suspected abuse "immediately" to appropriate authorities. The Opinion noted that a lawyer is required by DC Rule 1.6(e) to exercise reasonable care to prevent "others whose services are utilized by the lawyer" from disclosing confidences or secrets of a client, and a parallel obligation under Rule 5.3(b) to make reasonable efforts to ensure that the conduct of a nonlawyer retained by a lawyer "is compatible with the professional obligations of the lawyer." The Opinion also noted that while DC Rule 1.6(e) incorporates the exception to a lawyer's obligation of confidence provided by Rule 1.6(e)(2) when disclosure is "required by law," but found this not applicable in the circumstances, since the DC Code provision did not require disclosure of child abuse by lawyers. Thus, the Opinion noted, circumstances under discussion involved a conflict between the lawyer's ethical obligation to see to it that non-lawyer assistants preserve the client's confidences and secrets, onthe one hand, and the social worker's statutory obligation to disclose child abuse, on the other. Observing that the ethical requirements could not override statutory ones, the Opinion concludes that what the lawyer must do in such circumstances is to explain to the client, pursuant to Rule 1.4(b), the risk attendant upon the lawyer's retaining a social worker to assist in the representation of the client.

DC Ethics Opinion 214 (1990), written after the Rules of Professional Conduct were adopted but before they became effective, concerns a law firm's obligation when it receives an Internal Revenue Service summons requiring disclosure of a client's identity, which was a client confidence or secret. The Legal Ethics Committee said that the firm could not voluntarily comply with the summons even though a provision of the Internal Revenue Code requiring disclosure of names of and identifying information about persons engaging in certain transactions was such a law as might, under DR 4-101(C)(2) [soon to be Rule 1.6(d)(2)(A)], justify disclosure of client information. The Committee said that there were questions of coverage of the statute and that "until these were resolved definitively" by a court in a particular case, the firm could not ethically disclose its client's name. See also DC Ethics Opinion 124 (1983).

DC Ethics Opinion 223 (1991) concerned the Legal Services Corporation's statutory authority to obtain information from its grantees. The Committee said that this authority was "insufficiently narrow and specific" to permit as "required by law" disclosure to the LSC of confidences and secrets contained in a log of field attorneys' requests for assistance from the lawyers of a grantee support center.

DC Ethics Opinion 219 (1991) said that a regulation of a federal agency having the force and effect of law constitutes "law" within the meaning of Rule 1.6(d)(2)(A). The Opinion treated as a question of law and therefore declined to opine on whether a regulation of the Patent Office requiring the revelation of client fraud was such a regulation and therefore overrode Rules 1.6 and 3.3. The Legal Ethics Committee said that, in any event, before making even a disclosure "required by law," a lawyer must give the client the opportunity "to investigate and pursue any good faith challenge to the regulation."

Disclosure When Required by Court Order

DC Ethics Opinion 214 (1990), introduced in 1.6:320 above, said, as noted there, that a law firm could not voluntarily comply with an Internal Revenue Service summons requiring disclosure of a client's name, which was a client secret or confidence in the circumstances. The Opinion went on to describe the firm's duties if the IRS went to court to have its summons enforced. First, the firm must, as witness in the court and perhaps as advocate for the client's position, Opinion 214 n.5, assert the client's objections to disclosure. Then, if the court ordered enforcement, the law firm need not risk a finding of contempt, see DC Ethics Opinion 83 (1980), but, if it did not itself appeal the order, must notify the client of the order and thereby give the client an opportunity to appeal before complying with the order. The Legal Ethics Committee said that the relevant provisions of the forthcoming DC Rule 1.6, Comment [26], supported "the trend" of the Committee's prior decisions under DR 4-101(C)(2). See DC Ethics Opinions 14 (1976), 83 (1980), 124 (1983), 180 (1987).

1.6:330      Disclosure in Lawyer's Self-Defense

DC Rule 1.6(d)(3) permits a lawyer to use or reveal client confidences or secrets "to the extent reasonably necessary" to establish a defense to a criminal or disciplinary charge or to a civil claim. The charge or claim must be "formally instituted" and based upon conduct in which the client was involved. It also allows use or revelation "to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer's representation of the client," whether formal or otherwise. Comment [22] says that this provision means that a lawyer may not disclose a client's confidences or secrets to defend against informal allegations of third parties. Even if the third party has instituted a proceeding formally, the lawyer is supposed to advise the client of the action and request the client "respond appropriately, if it is practicable and would not be prejudicial to the lawyer's ability to establish a defense." Comment [23] expands on the scope of a lawyer's freedom to respond to a client's allegations regarding the attorney's work.

In In re Confidential, 701 A.2d 842 (DC 1997), the respondent to a disciplinary complaint resisted a subpoena duces tecum from Bar Counsel on the ground that enforcement of the subpoena would compel disclosure of confidential information in violation of Rule 1.6. The court pointed out that Rule 1.6(d)(3) permits disclosure of information otherwise protected by the Rule "to establish a defense by a . . . disciplinary charge . . . or to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer's representation of the client." In this case the respondent contended that, to the extent the exception rested on the client's waiver of the privilege by filing a complaint, the waiver here had been revoked by the client's withdrawal of the complaint. The court held that this argument was overruled by DC Bar Rule XI, § 19(c), which provides, inter alia, that a complainant's failure to prosecute a charge does not in itself justify abatement of an investigation by Bar Counsel.

DC Ethics Opinion 171 (1986) construed the predecessor Code provision, DR 4-101(C)(4), as permitting Attorney A to give testimony revealing client confidences or secrets in defense of Attorney B, deeming Attorney B to be an "associate" although the two lawyers were in different firms. B had been retained by A to act as trial counsel for a mutual client. The Code provision allowed disclosure necessary to defend a lawyer "or his employees or associates." DC Rule 1.6(e) permits this testimony more explicitly by saying that a lawyer's "employees, associates, and others whose services are utilized by the lawyer" may reveal information permitted to be disclosed by DC Rule 1.6(c) and (d).

DC Ethics Opinion 58 (undated), decided under the prior Code, found that a lawyer could not defend himself in a regulatory agency's disciplinary investigation by revealing bills submitted to clients who were not otherwise involved in the investigation, without the consent of those clients. The lawyer wished to submit bills from other clients to show that the inaccuracies of concern to the agency were isolated incidents, not a pattern of conduct. The Legal Ethics Committee expressed sympathy for the fact the lawyer might be "substantially disabled from raising a critical defense." Nonetheless, the Committee held that this result was required by the Code. DC Rule 1.6(d)(3) likewise limits a lawyer's self-defensive use or disclosure of client confidences or secrets to those matters "in which the client was involved."

1.6:340      Disclosure in Fee Dispute

DC Rule 1.6(d)(5) permits a lawyer to use or reveal confidences or secrets "to the minimum extent necessary in an action instituted by the lawyer to establish or collect the lawyer's fee." Comments [24] and [25] amplify this provision and caution that the section should be construed narrowly.

DC Ethics Opinion 298 (2000) [which is discussed more fully under 1.5:240, above] addresses the applicability of Rule 1.6(d)(5) and Comments [24] and [25] thereto in the context of a lawyer's use of collection agencies to recover unpaid fees.

DC Legal Ethics Opinion 236 (1993) cites comments to DC Rule 1.6 emphasizing that disclosures to collect fees should be "as narrow as possible" and that the lawyers should use devices like John Doe pleadings, in camera proceedings or protective orders "where possible to avoid the unnecessary disclosure of information." The inquirer's client had filed for bankruptcy, and the bankruptcy proceeding was being treated as a "no assets" proceeding. The inquirer asked whether, as part of an effort to collect its fees, the firm could disclose information on the client's assets in the bankruptcy proceeding. In addition to the previous admonitions about narrow disclosures, the Legal Ethics Committee cautioned that the inquirer "must have a good faith expectation of recovering more than a de minimis amount of the outstanding fee." The Committee warned that the lawyer's right to disclose client confidences or secrets to collect a fee does not extend to permitting disclosures for other purposes such as bringing a potential fraud to the attention of the court no matter how "salutary" that policy concern might be.

DC Ethics Opinion 218 (1991) approved a law firm retainer agreement providing for mandatory arbitration of fee disputes before the DC Bar Attorney-Client Fee Arbitration Board with client consent. In doing so, the Legal Ethics Committee stated that arbitration, "which is not open to the public, furthers the purposes of Rule 1.6(d)(5) by protecting the client from a public airing of confidential matters."

1.6:350      Disclosure to Prevent a Crime

The DC Rules permit no disclosure to prevent a crime except as described in 1.6:360 and 1.6:370, below.

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

Under DC Rule 1.6(c)(1), a lawyer may reveal client confidences and secrets "to the extent reasonably necessary" to prevent a criminal act that the lawyer reasonably believes is likely to result in death or serious bodily harm absent the lawyer's revelation.

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

1.6:370      Disclosure to Prevent Financial Loss

The DC Rules do not allow revelation to prevent financial loss except to the degree that Comment [19] to DC Rule 1.6 permits a lawyer who has withdrawn under Rule 1.16(a)(1) or Rule 1.16(b)(1) or (2) to retract or disaffirm any

opinion, document, affirmation, or the like that contains a material misrepresentation by the lawyer that the lawyer reasonably believes will be relied upon by others to their detriment.

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

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

DC Rule 1.6 does not address this issue. Comments [5]-[7] to DC Rule 3.4 do address it, however: see 3.4:210 below.

See also the discussion of DC Ethics Opinion 242 (1993) in 1.6:395, below. Opinion 242 concerns reconciling confidentiality obligations under Rule 1.6 with obligations to notify a third person of that person's property in the lawyer's possession, the lawyer's duty to return such property, and the duty to give an accounting of such property.

1.6:390      Confidentiality and Conflict of Interest

Comment [5] to DC Rule 1.7 says that a lawyer's ability to represent parties with common interests in a part of a case but whose interests may be adverse in another part of the case may be limited because of confidences and secrets the lawyer gains during the joint representation. DC Ethics Opinion 248 (1994) refused to preclude altogether representation of co-plaintiffs in an employment discrimination matter, who had a common interest in demonstrating discrimination but might fall out over the relief to be granted, but cited Comment [5] and its reference to confidences and secrets protected under DC Rule 1.6 as a consideration that cast doubt on the wisdom of the joint representation.

DC Ethics Opinion 237 (1992) responded to an inquiry by the Public Defender Service regarding the propriety of representing Client 2 when Client 1, a former client of the Service, is the complainant or an essential government witness. The Committee said that, even if DC Rule 1.9 was satisfied, DC Rule 1.6 might prohibit the subsequent representation of Client 2 if the representation would violate Rule 1.6 because of the prohibition on using a confidence or secret to the client's disadvantage or for the advantage of another. The Opinion went on to point out that DC Rule 1.10 does not impute knowledge of confidences among lawyers in a firm so that, if (as was, indeed, the case as represented to the Legal Ethics Committee) it was PDS lawyer A who had represented Client 1 and now PDS lawyer B proposed to represent Client 2, lawyer B, having no confidences or secrets of Client 1, would not be disqualified from representing Client A. Comment [5] to DC Rule 1.7 says that a lawyer's ability to represent parties with common interests in a part of a case but whose interests may be adverse in another part of the case may be limited because of confidences and secrets the lawyer gains during the joint representation. DC Ethics Opinion 248 (1994) refused to preclude altogether representation of co-plaintiffs in an employment discrimination matter, who had a common interest in demonstrating discrimination but might fall out over the relief to be granted, but cited Comment [5] and its reference to confidences and secrets protected under DC Rule 1.6 as a consideration that cast doubt on the wisdom of the joint representation.

1.6:395      Relationship with Other Rules

There are numerous cross-references to DC Rule 1.6 in other DC Rules and Comments. The following inventories those of significance.

DC Rule 1.2, Comment [7], concerns a lawyer's responsibilities upon learning of a client's ongoing wrongdoing. It cautions that, on the one hand, the lawyer may reveal client information only within exceptions listed in DC Rule 1.6 but that, on the other, the lawyer must avoid furthering the wrongful purpose.

The 1996 amendments to the DC Rules by the DC Court of Appeals include new Comments [13]-[18] to DC Rule 1.7 on conflicts as applied to organization clients. These relate to simultaneous representation of an organization client and a client whose interests are adverse to the interest of an affiliate or constituents of the organization. Comment [14] says that representation of a constituent must be tested by, among other things, reference to duties under DC Rule 1.6. It says that representation of the organization and its constituent or affiliate would be improper if, during the course of representation of the organization client, the lawyer had acquired confidences or secrets of the organization client or affiliate or constituent that could be used to the disadvantage of any of them.

The 1996 amendments also added Comment [25] to Rule 1.7, regarding businesses affiliated with a lawyer or firm. Its final sentence cautions that a lawyer's interest in a related enterprise serving the lawyer's clients requires "unusual care" to fashion a relationship among the lawyer, client, and related enterprise to ensure that confidences and secrets are properly preserved under Rule 1.6 "to the maximum extent possible."

DC Rule 1.8(e)(3) and Comment [6] include a prohibition on accepting compensation from another for representing a client unless information relating to representation of the client is protected, as required by DC Rule 1.6..

DC Rule 1.10(b) prohibits representation by a firm when a lawyer who becomes associated with the firm had represented a client whose interests are materially adverse and about whom the lawyer had acquired information protected by DC Rule 1.6 that is material to the matter. DC Rule 1.10(b) also refers to DC Rule 1.6(g) regarding information acquired prior to becoming a lawyer while providing assistance to another lawyer. DC Rule 1.10(b) provides that this is a basis for personal disqualification, but that disqualification is not imputed to others in the firm.

The Comments to DC Rule 1.10 include a number of references to DC Rule 1.6. Comments [4] and [5] to DC Rule 1.10 say the government is entitled to protection of confidences under DC Rule 1.6 as well as DC Rule 1.11.

The 1996 amendments to the DC Rules added Comments [7]-[9] to DC Rule 1.10, addressing a proviso added to paragraph (a) of that Rule, excepting from imputation the disqualification of an individual lawyer resulting from an initial interview with a prospective client. Comment [8] cautions that DC Rule 1.6 requires an attorney who has talked with a prospective client about undertaking representation to disclose information to others "only to the minimum extent necessary to enable the firm to determine whether it may ethically accept the proposed representation, and if so, whether it desires to do so." If the firm declines the representation, the disqualification of the lawyer who received confidences from the prospective client need not be imputed to others in the firm if "affirmative steps" are taken "as soon as an actual or potential conflict is suspected" in order to prevent distribution of information by the personally disqualified lawyer except what was necessary to investigate the conflict. Measures, of course, must also be taken to ensure that information about firm clients who may have a conflict with the prospective client is not given to the personally disqualified lawyers.

Comments [15] and [16] to DC Rule 1.10 point out that a firm disqualification under DC Rule 1.10(b) occurs only when a lawyer joining the firm has actual knowledge of information protected by Rule 1.6. Comment [17] warns that, independent of firm disqualification concerns, a lawyer moving from one professional position to another has a continuing duty under DC Rule 1.6.

Comment [21] to Rule 1.10 concerns confidences protected by DC Rule 1.6 that were received by the lawyer while assisting another lawyer, and before becoming a member of the bar. That lawyer's firm is not disqualified from any representation by the lawyer's possession of confidences or secrets so acquired; rather, the disqualification is limited to the lawyer involved and not imputed to others in the firm. Of course, the lawyer must protect the confidences and secrets.

The final references to DC Rule 1.6 in DC Rule 1.10 concern lawyers assisting the District of Columbia Office of Corporation Counsel and the District of Columbia Financial Responsibility and Management Assistance Authority. Comment [22] says that special rules are warranted because of the need for this assistance on a temporary basis. Comment [22] cautions, however (without explicitly referring to Rule 1.6), that safeguards must be in place to protect client confidences and secrets from disclosure. Comment [25] says this type of association with those governmental entities should be declined if there is a concern that duties to other clients under DC Rule 1.6 might be compromised. Comment [25] goes on to say that it is not anticipated that this will happen often. Comment [26] reminds that the fact of some client representations is not public and that information thus may be protected by Rule 1.6. Consequently, it is not anticipated that participating firms always will be required to do formal "conflicts checks" with respect to matters in which lawyers participating in the governmental offices are involved. Comment [26] warns, however, that sufficient consultation to "honor the requirements of Rule 1.6" must take place.

DC Rule 1.11(d) requires a lawyer associated with a former government lawyer who accepts a representation, from which the former government lawyer would be personally disqualified under DC Rule 1.11(a), to make certain notifications. DC Rule 1.11(f) says these notifications generally should be public unless the public department or agency is convinced by the notifying lawyer that public disclosure is inconsistent with DC Rule 1.6 or provisions of law.

DC Rule 1.13 Comment [3] says that communications by a constituent of an organizational client are protected by Rule 1.6 if they are made in the constituent's organizational capacity. This protection does not make the constituent a client of the lawyer. Comment [3] cautions the lawyer not to make disclosures of the organization's confidences or secrets to the constituent except as impliedly authorized by the organization to carry out the representation. Comment [6] to DC Rule 1.13 says that the Rule does not limit or expand the lawyer's responsibility under DC Rule 1.6 (as well as Rules 1.8, 1.16, 3.3, and 4.1).

DC Rule 1.15(b) requires a lawyer to notify a client or third person upon receiving funds or other property in which the client or third person has an interest. The paragraph goes on to require the lawyer to "promptly deliver" the property to the person entitled to it and, "upon request by the client or third person," to give a "full accounting regarding such property, subject to Rule 1.6." Both of these requirements are prefaced by the phrase "[e]xcept as stated in this Rule or otherwise permitted by law or agreement with the client."

DC Ethics Opinion 242 (1993) considered what a lawyer should do when the lawyer receives property from a client that may belong to another but, if turned over, would reveal a client confidence or secret. The lawyer had internal company records of a client's former employer that were given to the lawyer by the client. The former employer knew generally that the client had some documents but not their specific identity. The former employer had asserted a claim to the documents and requested their return, but the client wanted access to the documents to write a book and asserted ownership claims to at least some copies of the documents. Furthermore, the client did not want to reveal to the former employer which documents the client had. The Opinion struggled with the obligation to notify the third party about property in the lawyer's possession and the obligation to turn over property and give an accounting as against the Rule 1.6 duty of confidentiality. The Opinion said that the reference to Rule 1.6 "literally applies only to the delivery and accounting duties" and not to the notice duty in the preceding sentence of DC Rule 1.15(b). It said the inquirer's obligation depended initially on whether the client had any legitimate claim to custody or use of the documents, "an issue of fact and law beyond the Committee's power to resolve." It said that DC Rule 1.15 did not address the lawyer's obligation to turn over property when it was unclear to whom the property belonged. If the client had no plausible claim of ownership, the Opinion held that DC Rule 1.6 "may preclude return of the documents to the company," but it would not preclude the inquirer from holding them to preserve them. In that instance, the Opinion directed that retaining custody of the documents would be the proper course with "future disposition to be governed or directed by a court order or by some agreement of the parties." The Opinion said it might be possible to satisfy Rule 1.15(b)'s duty of notification without a violation of DC Rule 1.6 by giving a generalized notice since the former employer was aware that the client had some documents. The Opinion reached the conclusion that DC Rule 1.6 precludes the documents from being turned over by drawing an analogy to Comment [5] to DC Rule 3.4, which reconciles the lawyer's confidentiality obligations with the duty to turn over physical evidence. Comment [5] to Rule 3.4 cautions that the lawyer is "generally forbidden to volunteer information about physical evidence received from a client without the client's consent after consultation." The Opinion said that, to the degree there was a difference in obligations under Rule 3.4 and 1.15, it concerned obligations to the government or the court with respect to "evidence." It reasoned that obligations to third parties were the same whether the property in question was evidence or not. In the final paragraph, the Opinion warned that legal liability questions could arise from this fact situation that are beyond the scope of the ethical rules, e.g., permitting the client to use company documents might breach the inquirer's fiduciary duty or cooperation with the client might subject the inquirer to claims of wrongful interference or participation in the client's breach of fiduciary obligations to the former employer.

DC Rule 2.2 Comment [8] says that Rule 1.6 is an important factor in determining the propriety of a lawyer's serving as an intermediary between two or more clients. Complying with the lawyer's duty to keep each client informed and at the same time to protect client confidences and secrets is said to "require[] a delicate balance." The Comment says that, if the balance cannot be maintained, common representation is improper. Because the attorney-client privilege does not apply as between commonly represented clients, the Comment cautions that it must be assumed that if litigation ensued between the clients the privilege would not protect communications and the clients should be so advised.

DC Rule 2.3(b) says that, "[e]xcept as disclosure is required in connection with a report of an evaluation" of a matter affecting a client for the use of someone other than the client (as provided in DC Rule 2.3(a)), information relating to the evaluation is protected by DC Rule 1.6. This tips the confidentiality balance to disclosure when it is "required in connection with a report" under DC Rule 2.3. Comment [5] says that questions about the legal situation of a client at the "insistence of the client's financial auditor" are to be resolved under a procedure set forth in the American Bar Association Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information, adopted in 1975.

DC Rule 3.3(d) says that a lawyer who

receives information clearly establishing that a fraud has been perpetrated upon the tribunal shall promptly reveal the fraud to the tribunal unless compliance with this duty would require disclosure of information otherwise protected by Rule 1.6, in which case the lawyer shall promptly call upon the client to rectify the fraud.

DC Rule 3.3 Comment [6] says that the lawyer usually cannot present false evidence if the lawyer learns of the client's intent to present such evidence before it is presented. Even then the comment refers to "rare instances" in criminal cases when the lawyer is unsuccessful in dissuading a criminal defendant client from going forward and the lawyer "is unable to withdraw without causing serious harm to the client." DC Rule 3.3(b), as expanded upon in Comment [7], says that a lawyer may permit a client who is a defendant in a criminal case to "present false testimony in very narrowly circumscribed circumstances in a very limited manner." DC Rule 3.3(b) requires the lawyer to withdraw rather than offer the false testimony "if this can be done without seriously harming the client." DC Rule 3.3 Comment [8] defines serious harm to the client and says it is "more than the usual inconveniences" entailed by withdrawal such as delay or increase in cost. Comment [8] says such circumstances exist only when a client "would be significantly prejudiced, such as by express or implied divulgence of information otherwise protected by Rule 1.6." Comment [8] repeats the possibility of withdrawal as a remedy but says that the narrative testimony option of Rule 3.3(b) can be used in extreme circumstances such as those previously described in which DC Rule 1.6 otherwise would be violated.

DC Ethics Opinion 213 (1990) discussed the inquirer's question under both the Code and the Rules since this was the period just before the DC Rules became effective. The inquirer had argued that a prior lawyer's representation of a criminal client was ineffective assistance of counsel because the former lawyer failed to secure enforceable process upon a witness whose testimony allegedly would have exculpated the defendant. While the court was considering the matter, the inquirer located the witness who denied making the exculpatory statements although another witness had given an affidavit that such statements were made. The Legal Ethics Committee said that the inquirer did not have an ethical obligation to inform the court of the witness' denial of the exculpatory statements under DR 7-102 or DC Rule 3.3. Information learned from interview of the witness was deemed protected by DR 4-101 and DC Rule 1.6 and thus could be revealed only if permitted by the Rules or required by law or court order. The Committee found that the "simple existence of conflicting witness statements" did not by itself give "'knowledge' that one such statement is false. The Committee cited Butler v. United States, 414 A.2d 844, 850 (DC 1979), and the cases cited therein.

The reconciliation of Rule 1.6 and duties to turn over physical evidence is addressed in this section in the review of DC Ethics Opinion 242, above, and in the discussion of Comments [5]-[7] to DC Rule 3.4, in 3.4:210 below.

DC Rule 4.1(b) says a lawyer

shall not knowingly: . . . (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Comment [3] to Rule 4.1(b) says that the Rule recognizes that substantive law may impose duties to disclose information "to avoid being deemed to have assisted the client's crime or fraud" but says that the disclosure requirements are subject to obligations under DC Rule 1.6.

DC Rule 8.1(b) exempts information protected by DC Rule 1.6 from the general requirement to disclose facts necessary to correct misapprehensions known to have arisen in admission or disciplinary matters, and to respond to reasonable demands for information arising from those processes. Comment [3] points out that a primary example of such exemption is information gained while representing a bar applicant or lawyer subject to a disciplinary proceeding.

DC Rule 8.3(c) limits the duty to report misconduct of other lawyers by saying that it "does not require disclosure of information otherwise protected by Rule 1.6." Comment [2] repeats this limitation but says a lawyer should encourage a client to consent to disclosure "where prosecution would not substantially prejudice the client's interest." DC Ethics Opinion 246 (1994), discussed in 1.6:210 above, reviews a difficult reconciliation of Rule 1.6 and 8.3 duties in light of DC's broad definition of client secrets.

DC Rule 8.3 Comment [5] refers to Rule 1.6(h), which protects information gained by lawyers participating in lawyer counseling programs of the DC Bar Lawyer Counseling Committee.

1.6:400   Attorney-Client Privilege

· Primary DC References: DC Rule 1.6(b)
· Background References: ABA Model Rule 1.6, Other Jurisdictions
· Commentary: ABA/BNA § 55:301, ALI-LGL §§ 68-85, Wolfram §§ 6.3-6.5

The attorney-client privilege "protects confidential communications made between clients and their attorneys … for the purpose of securing legal advice or services." In re Lindsey, 148 F.3d 1100, 1103 (DC Cir. 1998) (citing In re Sealed Case, 737 F.2d 94, 98-99 (DC Cir. 1984)).

DC Rule 1.6(b) defines "confidence" as information protected by the attorney-client privilege under applicable law. In the District of Columbia local courts, the "applicable law" is the local law of attorney-client privilege. In the District's federal courts, on the other hand, the applicable law depends on whether local or federal law is to be looked to for the rules of decision. As Fed. R. Evid. 501 makes clear, in a civil proceeding in which local law supplies the rules of decision, the local law of attorney-client privilege applies. In a proceeding in which federal law provides the law of decision, the applicable law is the law of privilege as developed by the federal courts. See Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1512 (DC Cir. 1993). Although there do not appear to be any cases specifically addressing differences between the District's law of privilege and the federal law of privilege, readers should bear in mind that there may be such differences.

1.6:410      Privileged Communications

The privilege protects communications that relate to facts of which a lawyer was informed by a client or would-be client in order to obtain legal assistance. In re Sealed Case 737 F.2d 94, 98-99 (DC Cir. 1984); Athridge v. Aetna Cas. and Sur. Co., 184 FRD 181, 188 (DDC 1998) (refusing to protect an insurer's claims files because "[n]one of [the] information was communicated to an attorney …alone … for the purpose of seeking legal advice.) The privilege generally does not protect communications that merely disclose that the client retained the lawyer for a particular purpose. See Evans v. Atwood, 177 FRD 1, 4 (DDC 1997) (explaining that when an agency official asks an agency lawyer for an interpretation of a statute, the communication would not be protected even though its disclosure signals the agency's plans.) The general subject matter of a representation is not ordinarily privileged, nor does the general purpose of a client's representation necessarily divulge a confidential professional communication, but in exceptional cases it may be demonstrated that privilege does apply to such information. See United States v. Legal Services for New York City, 249 F.3d 1077, 1080 (DC Cir. 2001).

The recipient of the client's communication must be either a member of the bar or the "subordinate" of one, and the lawyer must be acting in his capacity as such. In re Sealed Case, 737 F.2d at 98-99. The law does not protect communications in which a person consults a lawyer "not as a lawyer but as a friend or as a business advisor, or banker, or negotiator…."' In re Lindsey, 148 F.3d 1100, 1106 (DC Cir. 1998)) (quoting 1 McCormick on Evidence § 88, at 322-24 (4th ed. 1992)).

Although the privilege applies to in-house counsel as it would to any other lawyer, Neuder v. Battelle Pacific Northwest National Laboratory, 194 FRD 289, 293 (DDC 2000), where business and legal advice are intertwined, the latter must predominate to be protected, and when the legal advice is merely incidental to business advice, the privilege doesn't apply. Id. at 292. Thus, in-house counsel's attendance at a meeting whose function is to make a business decision does not make all documents generated and distributed in connection with the meeting privileges. Id. at 293. A communication from a lawyer to an investigator employee on the client's behalf is not covered by the privilege unless it would reveal confidential information provided by the client. Alexander v. FBI, 192 FRD 12 (DDC 2000).

1.6:420      Privileged Persons

The privilege belongs to the client, or to a person who seeks to become a client. In re Sealed Case 737 F.2d 94, 98-99 (DC Cir. 1984).

Pilates, Inc. v. Georgetown Bodyworks Deep Muscle Message Centers, Inc., 201 FRD 201 (DDC 2000) held that a corporation was not entitled to assert attorney-client privilege on behalf of a former corporate owner of trademarks that it had acquired, where there was no change of control of the former corporation, nor a purchase of assets other than the trademark.

1.6:430      Communications "Made in Confidence"

A client's communication is "made in confidence" if the client says or writes something in the expectation that no one else will ever learn its contents. See Evans v. Atwood, 177 FRD 1, 4-5 (DDC 1997); Western Trails, Inc. v. Camp Coast to Coast, Inc., 139 FRD 4 (DDC 1991) (explaining that the preliminary draft of a letter sent by a client to his lawyer might not be protected if the client intended eventually to reveal the contents of the letter to third parties in the form of a final draft.)

In Cobell v. Norton, 213 FRD 69 (DDC 2003), the Court held that a memorandum discussing and responding to legal advice that had been received in a privileged document from counsel, but which bore no legend labeling it as confidential, and which had been produced to a special master without any accompanying statement to the effect that it was confidential, was not privileged because it was not shown to have been intended to be confidential when first created.

See Adams v. Franklin, 924 A.2d 993 (DC 2007), which is more fully discussed under 1.6:320, where information furnished by a client to a lawyer for inclusion in a demand letter was held not to be privileged because if it was intended for inclusion in such a letter it could not have been expected to be held in confidence.

1.6:440      Communications from Lawyer to Client

In addition to protecting communications from clients, the privilege protects communications from the lawyer to the client if they "rest" on confidential information obtained from the client. In re Sealed Case 737 F.2d 94, 99 (DC Cir. 1984). A communication "rests" on confidential information when "disclosure of its contents [would] necessarily and inevitably disclose a communication from the client which the client intended to be confidential." Boca Investerings Partnership v. United States, Civil Action No. 97-602, 1998 U.S. Dist. LEXIS 11870, at *6 -*7, *17 (DDC June 9, 1998) (protecting sections of an opinion letter in which the lawyer described the client's proposed transaction, but declining to protect other sections of the letter in which the lawyer discussed the transaction's tax consequences.)

The privilege does not protect communications from lawyer to client that convey information obtained from third parties. Montgomery v. Leftwich, Moore and Douglas, 161 FRD 224, 226 (DDC 1995); Western Trails, Inc. v. Camp Coast to Coast, Inc., 139 FRD 4, 10 (DDC 1991) (refusing to protect a map and various charts prepared by a lawyer for the client's use because although the data related to the client's business, it probably had been collected from third parties.)

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

The privilege does not ordinarily protect communications that disclose a client's identity. See United States v. Hunton & Williams, 952 F. Supp. 843, 856 (DDC 1997)(applying federal precedent regarding privilege). The privilege also does not protect fee arrangements. See Montgomery v. Leftwich, Moore and Douglas, 161 FRD 224, 226 (DDC 1995).

There appears to be no pertinent DC judicial authority regarding the applicability vel non of the privilege to information relating to a client's "whereabouts." But see D.C. Ethics Opinion 266 (1996) (holding that the client's whereabouts may be protected information under Rule 1.6(a)).

1.6:460      Legal Assistance as Object of Communication

To warrant protection, the client's communication must be for the purpose of obtaining either "'(i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding….'" In re Sealed Case 737 F.2d 94, 98-99 (DC Cir. 1984) (quoting United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D.Mass. 1950)); see also In re Lindsey, 148 F.3d 1100, 1106 (DC Cir. 1998) (holding that Deputy White House Counsel's advice regarding political, strategic, and policy matters would not be protected).

In Jones v. United States, 828 A.2d 169 (DC 2003), the appellant, who had been convicted by a jury of first degree sexual abuse and felony murder, appealed the trial court's denial of his claim of privilege regarding a conversation he had had with his girlfriend, who was a government lawyer without criminal law experience. Citing authority emphasizing that one seeking advice from a friend who is also a lawyer can invoke the privilege only if the advice is given as a lawyer, not as a friend, the Court pointed out that the nature of the relationship is a factual question for the Court to decide; and that the critical question is what the putative client, not the lawyer/friend, understands the relationship to be. Id. at 175-76. Here, the trial court had determined that the lawyer/girlfriend's advice had been given as a friend, not as a lawyer. The Court of Appeals also observed that there was no controlling precedent governing appellate review of a trial court ruling on the application of the privilege, although it noted that the federal courts were divided over whether a de novo or a "clear error" standard should apply in cases involving both application and waiver of the privilege. It then decided that where, as here, the trial court's determination rested on a factual finding, the "clear error," or "plainly wrong" standard of review applies. Id. at 174.

1.6:470      Privilege for Organizational Clients

The privilege protects communications between employees of the same organization for the purpose of seeking legal assistance. See Boca Investerings Partnership v. United States, 31 F. Supp. 2d 9, 11 - 12 (DDC 1998). The organization's lawyer involved in the communication must, however, be acting as a lawyer rather than as a management advisor. Id. at 12. Because organization lawyers often perform multiple functions, the courts must

examine the circumstances to determine whether the lawyer was acting as a lawyer rather than as business advisor or management decision-maker. One important indicator of whether a lawyer is involved in giving legal advice or in some other activity is his or her place on the corporation's organization chart. There is a presumption that a lawyer in the legal department or working for the general counsel is most often giving legal advice, while the opposite presumption applies to a lawyer … who works for…[the] management or business side of the house.

Id. (citing In re Sealed Case, 737 F.2d 94, 99 (DC Cir. 1989)). But a lawyer's place on an entity's organization chart is "not always dispositive." Id.

Nesse v. Shaw Pittman, 206 FRD 325 (DDC 2002) addressed the question whether certain notes taken by a law firm partner in meetings concerning a lawsuit against the firm were protected from disclosure by attorney-client privilege or work-product doctrine. One of the firm's partners, who served as general counsel to the firm, was conducting an internal investigation of the case, and notes taken at meetings with him about the case, or at meetings where his confidential advice about the case was discussed, were held to be covered by the privilege, but notes of a meeting among partners other than the general counsel about the case, and not focused on communications to or from the general counsel, were held not to be protected either by the privilege or as work-product.

Federal Trade Commission v. GlaxoSmithKline, 294 F.3d 141 (DC Cir. 2002) reversed a district court decision rejecting a claim of privilege for certain corporate documents on the basis that the corporate defendant had failed to preserve the privileged status of the documents because they had been widely distributed both within the company and to various outside public relations and government affairs consultants. The Court of Appeals held that the applicable standard was whether "the documents were distributed on a 'need to know' basis or to employees that were 'authorized to speak or act' for the company," id. at 349 (quoting Coastal States Gas Corp v. DOE, 617 F.2d 854, 863 (DC Cir. 1980). It held that the company's privilege log and an affidavit sufficiently established that the documents had been circulated only to specifically named employees and contractors, all of whom were "needed to provide input to the legal department and/or receive the legal advice and strategies formulated by counsel." Id.

1.6:475      Privilege for Governmental Clients

The privilege also protects communications between employees of a government agency for the purpose of obtaining legal assistance. See Tax Analysts v. IRS, 117 F.3d 607, 618 (DC Cir. 1997). As in the case of other organizational clients, the agency employee must be seeking legal assistance on behalf of the agency. See Hollar v. IRS, Civil Action No. 95-1882, 1997 U.S. Dist. LEXIS 12846, at *11 - *13 (DDC Aug. 7, 1997) (holding that communications between IRS revenue agents and agency lawyers were protected because "advice solicited …:sought in connection with litigation and debt collection").

Although the privilege for government clients is "rather absolute" in civil cases, In re Lindsey, 148 F.3d 1100, 1107 (DC Cir. 1998), it does not apply when a government client is represented by a government lawyer before a grand jury, and the lawyer has information "relating to the commission of possible crimes" by his client or others, id . (holding that a Deputy White House Counsel could not invoke the privilege to avoid testifying before a grand jury regarding conversations with the President).

1.6:480      Privilege of Co-Clients

When a lawyer represents two clients in the same matter, and one client later sues the other, neither can invoke the privilege to protect conversations he had with the lawyer while they were co-clients. See Athridge v. Aetna Casualty and Sur. Co., 184 FRD 181, 186 (DDC 1998) (citing Eureka Inv. Corp., N.V. v. Chicago Title Ins. Co., 743 F.2d 932 (DC Cir. 1984), and observing that the principle applies when an insured sues its insurer, with the result that the insurer cannot protect, from discovery by the insured, documents created by the lawyer the insurer had hired to represent the insured). See also Hillerich & Bradsby Co. v. MacKay, 26 F.Supp. 2d 124, 126 - 27 (DDC 1998) (citing In re Regents of the Univ. of Cal., 101 F.3d 1386. 1389 (Fed.Cir. 1996); treating two parties who used the same lawyer to prosecute a patent application -- one party being the inventor and the other a company that had retained the inventor as a consultant and had a contractual right to the patent -- as co-clients on the basis of their "common legal interest," and holding that neither could invoke the privilege against the other.)

1.6:490      Common-Interest Arrangements

The "common interest rule" allows individuals who share a common interest to share information without waiving their privilege vis-^-vis third parties. See Holland v. Island Creek Corp., 885 F. Supp. 4, 6 (DDC 1995). Their communication must satisfy three conditions: "(1) the disclosure is made due to actual or anticipated litigation; (2) for the purpose of furthering a common interest; and (3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties." Id. (citing United States v. AT&T, 642 F.2d 1285, 1298-99 (DC Cir. 1980)).

The "common interest rule" is also referred to as the "common interest privilege," and as the "joint defense privilege," see In re Sealed Case, 29 F.3d 715, 716, 719 n.5 (DC Cir. 1994).

In determining whether the common interest rule/privilege applies, the courts will consider whether the parties shared a common interest in the litigation as of the time when the information is shared. See AT&T, 642 F.2d at 1298-99 (citing In re United Mine Workers of Am. Employee Benefit Plans Litig., 159 FRD 307 (DDC 1994)).

In Minebea v. Papst, 228 FRD 13 (DDC 2005) the court summarized the foregoing propositions about common interest arrangements, with additional case citations, and added the following additional propositions, together with citations that are here omitted:  (1) The rule presupposes the existence of an otherwise valid attorney-client privilege; (2) it applies not only to communications subject to the attorney-client privilege, but also to communications protected by the work-product doctrine; (3) although a written agreement is the most effective method of establishing the existence of a joint defense agreement, an oral agreement whose existence, terms and scope are proved by the party asserting it will be enforceable as well; and (4) the party asserting the attorney-client or work product privilege always bears the burden of demonstrating that the information, communications or documents sought to be shielded are in fact privileged.  Id. at 15-16.

United States ex rel. Purcell v. MWI Corporation, 209 FRD 21 (DDC 2002) held that in a qui tam action under the False Claims Act in which the government chooses to intervene, there is a “joint-prosecutorial,” or “common interest privilege” between the relator and the government.

1.6:495      Duration of Attorney-Client Privilege

The Supreme Court has made it clear (in a 6-to-3 decision) that the privilege continues after the client's death to protect communications between a client and his lawyer that were privileged at the time they were made. Swidler & Berlin v. United States, 524 U.S. 399 (1998), rev'g 124 F.3d 230 (DC Cir. 1997).

DC Ethics Opinion 324 (2004) [discussed in more detail in 1.6:220] observes that the attorney-client privilege “usually extends beyond the death of a client,” citing the Swidler & Berlin decision.

DC Ethics Opinion 299 (2000) held that a lawyer's obligation to preserve the confidences and secrets of a corporate client continues not merely after termination of the client-lawyer relationship, but also after the corporate client has ceased operations. The inquiry to which the Opinion responded arose because the inquirer, who had represented the corporation in question, had had a request from counsel for a former officer of the corporation, seeking information that the inquirer believed to be subject to the attorney-client privilege. The Opinion made clear that the inquirer was bound to preserve not only the "confidences" of the former client (i.e., information covered by the privilege), but also its "secrets," absent an exception pursuant to paragraph (c) or (d) of Rule 1.6. No exception under paragraph (c) was suggested by the facts presented, leaving only the possibilities, under paragraph (d), of consent of the former client, given by a corporate successor (if there was one), or a court order. The Opinion pointed out that a former officer of the corporation would not have authority to give consent on behalf of the corporation, but that the former officer might be able to petition a court to appoint a receiver or trustee for the corporation to decide whether to exercise the corporation's right to consent to the disclosure that was sought.

1.6:500   Waiver of Attorney-Client Privilege

· Primary DC References: DC Rule 1.6(b)
· Background References: ABA Model Rule 1.6, Other Jurisdictions
· Commentary: ABA/BNA § 55:401, ALI-LGL §§ 78-80, Wolfram § 6.4

The law governing waiver of the attorney-client privilege is guided by the principle that "courts will grant no greater protection to those who assert the privilege than their own precautions warrant." Piedmont Resolution, L.L.C. v. Johnston, Rivlin & Foley, L.L.P., CA No. 96-1605, 1997 U.S. Dist. LEXIS 269, at *6 (DDC Jan. 13, 1997) (quoting In re Sealed Case, 877 F.2d 976, 980 (DDC 1989)). Thus, the holder of the privilege "must zealously protect the privileged materials, taking all reasonable steps to prevent their disclosure," SEC v. Lavin, 111 F.3d 921, 929 (DC Cir. 1997), for "[i]n the attorney-client context, this court adheres to a strict rule on waiver of privileges." Id.

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

The privilege can be waived by express agreement, and when waived is forfeited as against both the party to the agreement and third parties. See Piedmont Resolution L.L.C. v. Johnston, Rivlin & Foley, L.L.P., CA No. 96-1605, 1997 U.S. Dist. LEXIS 269, at *1 - *3, *6 - *7 (DDC Jan. 13, 1997) (finding that the plaintiff waived its privilege regarding a business transaction as against the defendant by signing a letter to the United States Secret Service waiving its privilege in order to cooperate in an investigation).

There appear to be no pertinent DC authorities regarding waiver by "disclaimer."

Failure to make timely objection to a subpoena duces tecum issued by the Federal Trade Commission, as required by Commission Rule of Practice 2.7(d), was held to constitute waiver of claims of privilege in Federal Trade Commission v. Glaxosmithkline, 208 FRD 8 (DDC 2001).

Courts may find that the privilege has been waived if a lawyer fails to claim the privilege at the appropriate time. See Boca Investerings Partnership v. United States, Civ. No. 97-602, 1998 U.S. Dist. LEXIS 11840, at *6 - *7 (DDC Jan. 20, 1998). In determining whether to hold a privilege waived by delay in asserting it, courts will apply the criteria governing discovery sanctions generally: "the effect of the conduct … on the court's docket, whether it has prejudiced that party's opponent, and whether deterrence is necessary to protect the integrity of the judicial system." Id. at *7 (citing Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167 (DC Cir. 1990)). In addition, "the sanction must never be any more severe than it need be to correct the harm done and to cure the prejudice created to the other party, unless the opposing party's behavior has been so flagrant or egregious that deterring similar conduct in the future in itself warrants the sanction…." Id. at *7 - *8 (holding that plaintiff's inclusion of a general statement of privilege rather than a document-specific privilege log in its initial response to the defendant's discovery request neither prejudiced the defendant, nor constituted an "egregious assault upon an efficient discovery process" warranting waiver).

In Bowles v. National Association of Home Builders, 224 FRD 246 (DDC 2004), the defendant was found to have waived both the attorney-client privilege and related work product immunity by failing, after learning that the plaintiffs had the protected materials in her possession, to “take reasonable steps to reclaim the protected material,” id. at 253  (quoting SEC v. Lavin, cited above, 111 F. 3d at 930).  The plaintiff was a former executive of a wholly-owned subsidiary of the National Association of Home Builders (NAHB), who had been fired because she objected to a proposed royalty agreement between the parent and the subsidiary, and therefore refused to sign the agreement in her official capacity.  She was suing the parent company to recover the large severance payments to which she was entitled under her employment agreement, but this decision dealt with cross motions by the parties relating to confidential documents that had been prepared by counsel for the parent and the subsidiary regarding the legal validity of the royalty agreement that occasioned the parties’ parting of the ways.  In correspondence prior to the filing of the case, plaintiff’s counsel informed defendant’s counsel that plaintiff had some of  those confidential documents and was returning them to the defendant but keeping copies of them.  Defendant’s counsel then demanded return of all such documents and copies thereof.  After the suit was filed, the parties’ respective positions with regard to the confidential documents relating to the legality of royalty agreement escalated into a motion by plaintiff to compel production of all such documents in the defendant’s possession, and a cross motion by the defendant to compel the plaintiff to return all such documents in her possession.  There was no dispute as to whether the documents in dispute were, at creation, clothed with either the attorney-client privilege or attorney work-product privilege; the dispute was solely whether the defendant had waived both privileges, by failing promptly to take appropriate measures to recover the copies of the privileged documents that it knew were in the plaintiff’s possession. 

The plaintiff argued that the defendant NAHB had waived any privilege by furnishing the documents to its subsidiary, at a time when the two entities were adverse to each other with respect to the proposed royalty agreement, but the defendant argued that the materials were shared by NAHB with its subsidiary for the purpose of persuading it to accept the proposed agreement, and that disclosure in such circumstances did not amount to a waiver of otherwise applicable privileges with respect to anything but the particular documents so disclosed -- in other words, the disclosure did not constitute a waiver with respect to the subject matter of the documents that were shared.  The court noted that the waiver of privilege with respect to documents disclosed during settlement discussions was an issue of first impression in the DC Circuit, although there was authority in other jurisdictions, id. at 252, but found it unnecessary to decide that issue because the record was so clear that NAHB had “failed to take any legal action to assert its privilege or otherwise to recover the documents in plaintiff’s possession for more than a year after plaintiff informed NAHB that she possessed the comments,” id. at 253.  In reaching this conclusion, the court canvassed the case authority in the District of Columbia as well as other jurisdictions dealing mainly with the sufficiency of efforts to recover the protected materials that had been inadvertently disclosed.  The Court then turned to the question whether NAHB’s waiver of the privilege with respect to the disclosed documents constituted a subject matter waiver. Recognizing that different standards governed this question as applied to the attorney-client privilege and to attorney work product privilege, but after canvassing DC Case authority as to both, concluded that in this case, there had been a subject matter waiver as to both. Id. at 257-60.

1.6:520      Waiver by Subsequent Disclosure

As a general matter, "any disclosure by a holder of a privilege inconsistent with maintining the confidential nature of [the privileged] communication waives the privilege." SEC v. Lavin, 111 F.3d 921, 933 (DC Cir. 1997) (citing In re Sealed Case, 676 F.2d 793, 818 (DC Cir 1982). Thus, the voluntary disclosure of privileged material to third parties waives the privilege. See In re Sealed Case, 121 F.3d 729, 741 (DC Cir. 1997) (citing In re Sealed Case, 676 F.2d at 809); Piedmont Resolution, L.L.C. v. Johnston, Rivlin, and Foley, L.L.P., CA No. 96-1605, 1997 U.S. Dist. LEXIS 269, *1 - *3, *6 - *7 (DDC Jan. 13, 1997) (finding that the plaintiff waived its privilege regarding a business transaction by discussing the transaction with United States Secret Service Agents).

At least in the District of Columbia federal courts, the privilege is lost even if the disclosure is inadvertent. In re Sealed Case, 877 F.2d 976, 980 (DC Cir. 1989) (holding that inadvertent disclosure of a privileged document waived the privilege with respect to that document and five related documents). "Short of court-compelled disclosure … or other equally extraordinary circumstances, [the court] will not distinguish between various degrees of voluntariness in waivers of the attorney client privilege." Id. See also Wichita Land & Cattle Co. v. American Fed. Bank, 148 FRD 456 (DDC 1992) (requiring a law firm to comply with an adverse party's discovery request for two privileged documents mistakenly made available to opposing counsel, among 40 boxes of documents, for preliminary review); In re United Mine Workers of Am. Employee Benefit Plans Litig. 156 FRD 507 (DDC 1994) (same, re privileged documents inadvertently included in three of 60 boxes released to opposing counsel for review).

The court will consider a document "disclosed" for the purpose of finding waiver when the person who has received the documents has learned the "gist" of the material. Wichita Land & Cattle Co., 148 FRD at 459 (citing Chubb Integrated Sys. Ltd v. National Bank of Washington, 103 FRD 52, 63 (DDC 1984)). And waiver by disclosure applies not only to the disclosed communications, but also to "'all other communications relating to the same subject matter.'" In re Sealed Case, 121 F.3d at 741 (quoting In re Sealed Case, 676 F.2d at 809); Corporation for Pub. Broad. v. American Auto. Centennial Comm'n, Civ. No. 97-1810, 1999 U.S. Dist. LEXIS 1072, at *6 (DDC Feb. 2, 1999) (holding that the defendant's inadvertent disclosure of a letter from its lawyer to its president describing the plaintiff's policy on editorial control required disclosure of all other documents relating to plaintiff's policy). The courts may limit the scope of the waiver, however, when "the client has merely disclosed a communication to a third party, as opposed to making use of it." Western Trails, Inc. v. Camp Coast to Coast, Inc., 139 FRD 4, 12 (DDC 1991) (quoting In re Sealed Case, 676 F.2d at 809 n. 54).

A party may not "selectively disclose part of a privileged communciation in order to gain an advantage in litigation." Securities and Exchange Comm'n v. Lavin, 111 F.3d at 933 (citing In re Sealed Case, 676 F.2d at 818).

Disclosure of part of a document, however, does not necessarily waive the privilege in regard to redacted parts. See Holland v. Island Creek Corp., 885 F.Supp. 4, 7 (DDC 1995). Similarly, disclosure of a draft does not necessarily waive the privilege for other drafts of the same document. See id. at 8.

Disclosure of privileged materials among officials of the same agency does not waive the privilege. See Evans v. Atwood, 177 FRD 1, 6 (DDC 1997). As has been mentioned, when disclosure has been compelled by the court, and in other "equally extraordinary circumstance[s]," the privilege will not be waived. In re Sealed Case, 877 F.2d at 980.

Alexander v. FBI, 198 FRD 306 (DDC) held, inter alia, that sending of the final draft of a letter to a third party doesn't waive privilege otherwise applicable to previous drafts of the letter, id. at 311; that a letter inspired by confidential communications but not disclosing the substance of the communications, doesn't waive the privilege, id. at 314; and that lower-level corporate employees' disclosure of communications with corporate counsel doesn't waive privilege, since the privilege is that of the corporation, and power to waive it rests solely with management, id. at 315.

In Sparshott v. Feld Entertainment, Inc., 2000 U.S. Dist. LEXIS 13800 (DDC 2000), the court held that the privilege covering taped telephone conversations between an employee and his lawyers, was not waived when the employee, placed on leave and locked out of his office, forgot to remove the tape from a dictaphone when allowed to visit the office in order to retrieve his belongings. The employee's neglect or failure to recall that the tape was in the machine on the "stressful day in question" was not, the court observed, an affirmative act such as throwing a confidential document into the garbage.

Another exception to waiver by subsequent disclosure is provided by the "common interest" or "joint defense" privilege, which permits a client and his lawyer to discuss protected information in the presence of other parties with whom the client is engaged in a joint defense without forfeiting the client's privilege. See 1.6:490, above.

1.6:530      Waiver by Putting Assistance or Communication in Issue

The privilege is waived if the client puts the privileged material "in controversy." Ideal Elec. Sec. Co., Inc v. International Fidelity Ins. Co., 129 F.3d 143, 151 (DC Cir. 1997) (holding that the privilege with respect to a lawyer's billing statements was waived because the adverse party needed them to defend itself against the client's suit to recover fees that had been paid to the lawyer); Estate of Cornwell v. AFL, 197 FRD 3 (DDC 2000) (privilege waived as to testimony regarding reasonableness of Board of Trustees' decision denying benefits claim, where defendants had put that reasonableness in issue).

In Mineba Co., LTD v. Papst, 355 F.Supp.2d 518 (DDC 2005), the court referred to the waiver of privilege resulting from a party placing otherwise privileged material in issue as an “implied” or “at issue” waiver, and went on to observe that “[t]he purpose of the implied waiver doctrine is to prevent ‘and abuse of the privilege,’ that is, to prevent the confidentiality protected by the privilege from being used ‘as a tool for manipulation of the truth-seeking process …[A party asserting privilege] cannot be allowed, after disclosing as much as [it] please, to withhold the remainder’ ” [quoting In re Sealed Case, 676 F.2d 793, 807 (DC Cir. 1982].

The privilege is also waived by a claim of ineffective assistance of counsel. See Eldridge v. United States, 618 A.2d 690, 693 n.3 (DC 1992) (citing Doughty v. United States, 574 A.2d 1342, 1343 (DC 1990)).

1.6:600   Exceptions to Attorney-Client Privilege

· Primary DC References: DC Rule 1.6(b)
· Background References: ABA Model Rule 1.6, Other Jurisdictions
· Commentary: ABA/BNA §§ 55:901 et seq., ALI-LGL §§ 81-84, Wolfram §§ 6.4

Even where the privilege applies, the courts may allow discovery if the party seeking the privileged information demonstrates a compelling need for it. See Carl v. Children's Hosp., 657 A.2d 286, 293 (DC 1995), rev'd on other grounds, 702 A.2d 159 (DC 1997)(en banc). The court will balance the "importance of the …privilege against [the discovering party's] need for the information, considering such factors as whether the information sought goes to the heart of, or is crucial to, [the party's] discovery claims, and the issues framed by the pleadings." Id. See also Neku v. United States, 620 A.2d 259, (DC 1993) (applying a balancing test when privilege prevents defendant from exercising Sixth Amendment right to confront adverse witness). This may be a point on which the local and the federal courts of the District of Columbia differ: see FDIC. v. Cafritz, Civil Action No. 91-883, 1991 U.S. Dist. LEXIS 11152, at *12 (Apr. 12, 1991) ("[T]here is no express 'balancing test' in this Circuit.").

A more specific exception is that the privilege may not be invoked by a lawyer to resist a subpoena from Bar Counsel for records relating to the lawyer's representation of particular clients, even if those clients have not complained of the lawyer's conduct that is being investigated. See In re Confidential, 703 A.2d 1237, 1238 (DC 1997)(dictum).

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

DC Ethics Opinion 324 (2004) [discussed in more detail in 1.6:220] discusses the testamentary exception to attorney-client privileged and concludes that a lawyer may reveal a deceased client’s confidential information to the client’s executor if the lawyer has reasonable grounds for concluding that release of the information is impliedly authorized in furthering the client’s interests in settling the client’s estate.

1.6:620      Exception for Client Crime or Fraud

The privilege does not protect communications made "'for the purpose of getting advice for the commission of a fraud or crime….'" Crane v. Crane, 614 A.2d 935, 938 (DC 1992) (quoting United States v. Zolin, 491 U.S. 554, 563 (1989)). The party seeking to overcome the privilege on the basis of this exception for client crime or fraud must show that the client's conduct meets two conditions. First, "the client must have made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act." In re Sealed Case, 107 F.3d 46, 49 (DC Cir. 1997) (citing In re Sealed Case, 754 F.2d 395, 399 (DC Cir. 1985); United States v. White, 887 F.2d 267, 271 (DC Cir. 1989)). Second, the client must have carried out the "crime or fraud." Id. See, e.g., In re Grand Jury Subpoena to Carter, Misc. Action No. 98-068, 1998 U.S. Dist. LEXIS 19497, at *4 - *5 (DDC Apr. 28, 1998) (applying crime-fraud exception to Monica Lewinsky's communications to her lawyer on the basis of evidence that she made the communications with the intention of furthering her own perjury and obstruction of justice). It need not be shown that the lawyer knew the client intended to commit a wrongful act. See id. at *4 - *5 (citing In re Sealed Case, 676 F.2d 793, 812 (DC Cir. 1982)).

In re Public Defender Service, 831 A.2d 890 (DC 2003) offered an extended treatment of the law relating to the crime-fraud exception to the attorney-client privilege. The case involved a grand jury subpoena to a Public Defender Service (PDS) lawyer representing a client awaiting trial for murder. A witness who had implicated the defendant in the murder, who was being held in jail on unrelated charges, had been intimidated by inmates who were associates of the defendant into signing two statements recanting what he had told the government about the defendant. A grand jury was convened to instigate this as obstruction of justice, and it had issued the subpoena to PDS seeking any documents in its possession written or signed by the witness (and presumably also seeking testimony about them). PDS filed a motion to quash, invoking the attorney-client privilege, and the government responded with a claim that the crime-fraud exception applied. The government's response was supported by the ex parte submission of a detailed proffer by an assistant United States Attorney, describing the circumstances, signed but not sworn to, and unaccompanied by any evidentiary support. The motions judge before whom the matter came for decision held for the government and ordered the subpoena complied with and when PDS refused to comply, held it in civil contempt. The Court of Appeals reversed, holding that the government had not established the crime-fraud exception, primarily because it hadn't made a showing that communications between the PDS lawyer and his client were actually in furtherance of an ongoing or future crime or fraud. It also held, however, that the witness's coerced statements were not covered by the attorney-client privilege, though they might be subject to a limited Fifth Amendment "act of production" privilege.

In the course of its decision, the Court addressed a number of issues, including the standard for judicial review, the burden of proof, as to both the privilege and the crime-fraud exception, the standard of proof for the latter, the substance of the showing necessary to establish the crime-fraud exception, and the propriety of the government's submission in support of its opposition to the motion to quash being ex parte.

With respect to the standard for judicial review, the Court noted that while trial court determinations of motions to quash are typically reviewed for abuse of discretion, "the justification for that comparatively deferential standard of review is largely absent when the motion to quash is based on a claim of attorney-client privilege." Id. at 898. Since the issue whether privilege applies is mainly a matter of law, the Court concluded, review should be de novo.

As to burden of proof, the Court stated that the party asserting the privilege has the burden of proving that the Communications in question are protected, and that the burden then shifts to the opposing party to demonstrate the applicability of the crime-fraud exception. Id. at 902-03. The standard of proof for the latter is a prima facie showing, which "need not rise to the level of dispositive proof, but it must at least have some substance." Id. (quoting Crane v. Crane, 614 A.2d 935, 941 (DC 1992) (Terry, J., concurring). In this connection, the Court explained,

We borrow the probable cause standard from the Fourth Amendment and case law expounding on its meaning in that context. Adapted to the present context, the test for determining probable cause is whether the totality of the facts and circumstances presented would warrant a reasonable and prudent person in the belief that the attorney-client communications in question were in furtherance of an ongoing or future crime or fraud as explained in this opinion.

Id. at 904

As to the fact that the government's submission in support of its crime-fraud contention had been ex parte, the Court held that this was justified by the fact that the information in the submission was subject to grand jury secrecy. Id. at 904-05. However, the Court found the unsworn narrative proffer in this case insufficient, since it lacked any "grand jury testimony, affidavits, or comparable evidence." Id. at 905. The Court did not decide the case on this ground, however, because there seemed to be no real dispute about the accuracy of the material facts asserted in the government's proffer. Rather, turning to the substance of the showing that must be made to establish the crime-fraud exception, the Court held that the key element was that the communication between the client and attorney must "further a crime, fraud or other misconduct," id. at 906 (quoting United States v. White, 887 F.2d 267, 271 (DC Cir. 1989)), which the communication in issue here did not do because PDS never had any intention of making use of the coerced statements of the witness. In this connection, the Court declined to follow either the case authority requiring that the intended crime or fraud have been accomplished (cf. In re Grand Jury Subpoena to Carter, above), or the authority to the effect that the mere intent of the client to use the attorney consultation to further an illegal scheme constitutes an abuse of the attorney-client relationship that forfeits the privilege. Rather, the Court held that the communication must in some way further the unlawful scheme, which typically can be shown by "evidence of some activity following the improper consultation, on the part of either the client or the lawyer, to advance the intended crime or fraud," id. at 910, which was not the case here.

Although rejecting the government's crime-fraud claim, the Court held that the privilege, though applicable to communications between the defendant and his PDS lawyer about the coerced witness statements, would not apply to the statements themselves, unless those were protected by the privilege against self-incrimination in the possession of the client; but that the only such protection potentially applicable here would be an "act of production" privilege; and the Court remanded the case for a determination on this point.

There are slight differences in the test for the crime/fraud exception as applied in the attorney-client privilege context, on the one hand, and in the work-product immunity context on the other. As explained in In re Sealed Case, 223 F.3d 775, 778 (DC Cir. 2000),

To establish the exception to the attorney-client privilege, the court must consider whether the client "made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act," and establish that the client actually "carried out the crime or fraud." In re Sealed Case, 107 F.3d 46, 49 (D.C.Cir. 1997). To establish the exception to the work-product privilege, courts ask a slightly different question, focusing on the client's general purpose in consulting the lawyer rather than on his intent regarding the particular communication: "Did the client consult the lawyer or use the material for the purpose of committing a crime or fraud?" Id. at 51.

If the transaction with which the attorney-client consultation is connected is not in fact a crime, then the crime/fraud exception does not apply. See In re Sealed Case, 223 F.3d 775 (DC Cir. 2000) (holding that the court must defer to the Federal Election Commission's determination that the prohibition of 2 USC §441e(a) on contributions by foreign nationals to political committees did not apply in the circumstances, so that the discussion of such contributions here, between counsel and a client political committee, did not involve crime within the meaning of the crime/fraud exception).

1.6:630      Exception for Lawyer Self-Protection

There appear to be no pertinent DC authorities regarding an exception to the privilege for "lawyer self-protection." See, however, DC Rule of Professional Conduct 1.6(d)(3) and (5), discussed under 1.6:330 and 1.6:350, respectively, above.

1.6:640      Exception for Fiduciary-Lawyer Communications

The privilege does not protect communications made by an employer regarding its role as administrator of the company's employees benefit plan against discovery by employees relating to the plan. See M.A. Everett v. USAIR Group, Inc., 165 FRD 1, 4 (DDC 1995) (citing Washington-Baltimore Newspaper Guild, Local 35 v. Washington Star Co., 543 F. Supp. 906, 909 (DDC 1982)). The employees, thhe attorney's "true" clients because they are the plan's beneficiaries. Id.

1.6:650      Exception for Organizational Fiduciaries

Wessell v. City of Albuquerque, 2000 WL 1803818 (DDC 2000) was a decision involving a third-party subpoena in a suit by a group of non-union employees against their employer, the City of Albuquerque, challenging an agreement between the city and a union local providing for "fair share fees" to be deducted from the payroll of non-union employees. The subpoena sought certain documents from the parent international union; the union resisted on grounds of privilege and work-product; but the plaintiffs argued successfully that the fiduciary-beneficiaries exception applied.

See also ALI-LGL §§ 84 and 85.

1.6:660      Invoking the Privilege and Its Exceptions

The party claiming privilege "bears the burden of proving that the communications are protected." In re Lindsey, 148 F.3d 1100, 1106 (DC Cir. 1998). The showing must be more than a "blanket assertion of privilege," id.; it must "'conclusively prove each element of the privilege.'" Id. (quoting SEC v. Gulf & W. Indus., 518 F. Supp. 675, 682 (DDC 1981)). In order to allow adverse parties to contest the claim, a party claiming privilege must describe "the nature of the documents, communications, or things not produced or disclosed." Blumenthal v. Drudge, 186 FRD 236, 243 (DDC 1999) (quoting Fed. R. Civ. P. Rule 26(b)) In particular, the description should include at least "the parties to the communications, the dates on which the communications occurred and their general subject matter." Id. at *17 - *18. Thus, in Animal Legal Defense Fund, Inc. v. Department of the Air Force, 44 F. Supp. 2d 295, (DDC 1999) the Court rejected the following statement, relied on by the defendant to invoke the privilege, as lacking any facts to substantiate the claim of privilege: "Information concerning confidential communication between an Air Force attorney and her client relating to a legal matter for which the Air Force sought advice was withheld in order to ensure that Air Force officials continue to receive sound legal advice and advocacy from their attorneys."

1.6:700   Lawyer Work-Product Immunity

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

In contrast to the subject of attorney-client privilege (see 1.6:400, above), there do not appear to be any differences between the jurisprudence of the local courts and the federal courts of the District of Columbia on this subject. And Rule 26(b)(3) of the DC Superior Court Civil Rules is identical to Fed .R. Civ. P. Rule 26(b)(3) (which, of course, codifies the holding of Hickman v. Taylor, 329 U.S. 495 (1947)).

1.6:710      Work-Product Immunity

[Although work-product immunity appears to be the favored term in academia, and tends to emphasize the distinction from attorney-client privilege (despite their frequent overlapping), the treatment of lawyer work-product by the courts often uses the term privilege rather than immunity; and the two terms will be used interchangeably in the discussion below.]

"The work product doctrine …creates a 'qualified privilege' for materials prepared by an attorney …in anticipation of trial." Parks v. United States, 451 A.2d 591, 607 (DC 1982) (citing United States v. Nobles, 422 U.S. 225, 237-39 (1975) and Super. Ct. R. Civ. P. Rule 26(b)(3)). The materials can also be prepared by the lawyer's agent, see Wash. Bancorporation v. Said, 145 FRD 274, 276 (DDC 1992) (citing Fed. R. Civ. P. Rule 26(b)(3)). The types of materials covered by the privilege include "'interviews, statements, memoranda, correspondence, [and] briefs.'" Hager v. Bluefield Reg'l Med. Ctr., Inc., 170 FRD 70, 76 (DDC 1997) (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)). The cases are divided as to whether the "material" in question may be intangible. Compare Director of the Office of Thrift Supervision v. Vinson & Elkins, L.L.P., 168 FRD 445, 448 (DDC 1996) (citing Hickman, 329 U.S. at 511: "What lawyers remember is just as privileged as what they write down."), with Athridge v. Aetna Cas. and Sur. Co., 184 FRD 200, 209 (DDC 1998) ("[T]he work-product privilege contained in Fed. R. Civ. P. Rule 26 (b)(3) applies only to documents and tangible things….").

The privilege does not apply to materials prepared "'in the ordinary course of business or for other nonlitigation purposes.'" In re Sealed Case, 146 F.3d 881, 887 (DC Cir. 1998) (quoting Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1515 (DC Cir. 1993)); Western Trails, Inc. v. Camp Coast to Coast, Inc., 139 FRD 4, 12 (DDC 1991) (finding that charts prepared by the defendant's lawyer as part of the development of a new corporate policy were not entitled to immunity because even though the defendant was aware that the new policy could give rise to litigation challenging the policy, the charts were created in the ordinary course of business).

The work-product immunity applies to criminal as well as civil proceedings, see Parks, 451 A.2d at 607, including grand jury proceedings, see In re Grand Jury Proceedings, 5 F. Supp. 2d 21, 39 (DDC 1998). In a criminal proceeding, a defendant may invoke the privilege against a co-defendant, as well as against the government. See Parks, 451 A.2d at 607. Work-product immunity may be invoked during trial as well as pretrial. See Parks, 451 A.2d at 607 (citing Nobles, 422 U.S. at 239).

To determine whether material was prepared "in anticipation of litigation," courts will ask "'whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" In re Sealed Case, 146 F.3d at 884 (quoting Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 586 n.42 (DC Cir. 1987)). Under this standard, the lawyer "must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable." Id. See also Hager, 170 FRD at 77 (holding that a letter prepared by the plaintiff's lawyer regarding the legality of the plaintiff's contract with his employer was "in anticipation of litigation"). Thus, in Evans v. Atwood, 177 FRD 1, 8 (DDC 1997), the Court found that an internal memorandum from the general counsel's office of the defendant agency seeking additional lawyer staffing, in part to defend against the plaintiffs' lawsuit, was not entitled to protection as work product because the memorandum did not disclose "what those lawyers have done and will do to prepare for trial nor their thought processes as they prepare for trial," and that another internal memorandum advising the defendant's employees that the plaintiff had filed a lawsuit and explaining how the employees should prepare responses to requests for documentation and other inquires was not entitled to protection because the memorandum did not reveal "anything about the thought processes of the defendants' attorneys or the actual information they are collecting as they prepare for trial."

The court may find that material was prepared in anticipation of litigation even in the absence of a specific claim asserted by an adverse party at the time of its preparation: the absence of a specific claim "represents just one factor that courts should consider in determining whether the …privilege applies." In re Sealed Case, 146 F.3d at 886-87 (holding that notes made by a lawyer hired by the Republican National Committee to advise the party regarding a proposed loan were entitled to immunity, even though neither the Democratic National Committee nor the Federal Election Commission had made a specific claim regarding the loan, because of the recent "intense focus" within the District of Columbia on claims of campaign finance violations and the public criticism of the RNC's relationship with the loan recipient.) See also Equal Employment Commission v. Lutheran Social Services, 186 F.3d 959 (D.C. Cir. 1999) (holding that the entirety of a report of an investigation by outside counsel prompted by anonymous memoranda accusing the organization's president of creating a hostile work environment for female employees was protected by the work product privilege because the organization had had the investigation done because it "feared litigation," even though it had not been sued at the time). See also Nesse v. Shaw Pittman, 202 FRD 344, 348 (DDC 2001) (an angry call from a former client, demanding that law firm "fix" a problem, sufficed to warrant anticipation of litigation on the part of a law firm, for work-product immunity purposes, even though the firm did not give written notice to its insurance carrier until two months later.) In addition, the privilege applies even if the material was prepared in anticipation of a different trial, "so long as it was prepared in anticipation of some litigation by a party to the present litigation." Western Trails, Inc., 139 FRD at 9 (citing Eckert v. Fitzgerald, 119 FRD 297, 299 (DDC 1988)).

The work-product immunity can be overcome. Parks, 451 A.2d at 608. The showing required to overcome it depends on whether the work-product consists of facts or opinions. See id. For "fact work-product," the party seeking access must show that "he or she has a 'substantial need' for the material and 'is unable without undue hardship to obtain the substantial equivalent of the material by other means." Id. For "opinion work-product," the party seeking access must show "extreme necessity." Id.

Nesse v. Shaw Pittman, 206 FRD 325 (DDC 2002) addressed the question whether certain notes taken by a law firm partner in meetings concerning a lawsuit against the firm were protected from disclosure by attorney-client privilege or work-product doctrine. One of the firm's partners, who served as general counsel to the firm, was conducting an internal investigation of the case, and notes taken at meetings with him about the case, or at meetings where his confidential advice about the case was discussed, were held to be covered by the privilege, but notes of a meeting among partners other than the general counsel about the case, and not focused on communications to or from the general counsel, were held not to be protected either by the privilege or as work-product.

In In re Grand Jury Proceedings, 201 F. Supp. 2d 5 (DDC 2001), a lawyer's notes regarding the legitimate sources of the funds that were to be used to pay fees were held not to be covered by the work product doctrine and so were subject to production in response to a grand jury subpoena, because "the nature and form of an attorney's fee arrangement really have nothing to do with the substance of the litigation that the lawyer is retained to advise the client about." Id. at 13.

1.6:720      Ordinary Work Product

"Ordinary work-product" is also called "fact work-product." It is material that contains "no mental impressions, conclusions, opinions, or legal theories…." Parks v. United States, 451 A.2d 591, 608 (DC 1982); see also In re Sealed Case, 124 F.3d 230, 236 (DC Cir. 1997) (holding that a lawyer's notes of an interview of a client were ordinary work-product if "the context suggests that the lawyer has not sharply focussed or weeded the materials"); Washington Bancorporation v. Said, 145 FRD 274, 278-79 (DDC 1992) (holding that the FDIC's index of 2400 boxes of documents was ordinary work-product because it was "too vast and too basic" for the court to conclude that it would reveal "important aspects of [the FDIC's] understanding of [its] case[s].") Ordinary work-product covers materials reflecting facts learned in preparation for trial but not the facts themselves. See Parks, 451 A.2d at 608 (citing Hickman v. Taylor, 329 U.S. 495, 504 (1947); holding that the trial court erred in sustaining a co-defendant's objection to a defense witness's testimony on the grounds of work-product immunity).

The party seeking access to ordinary work-product "must show that he or she has a 'substantial need' for the material and 'is unable without undue hardship to obtain the substantial equivalent of the material by other means.'" Id. (quoting Fed.R.Civ.P. Rule 26(b)(3)). See Washington Bancorporation, 145 FRD at 279 - 80 (holding that the defendant had a substantial need for the FDIC's index of 2400 boxes because re-creating the index would entail substantial expenditure of money and time). The party seeking access always prevails if the material contains "admissible evidentiary facts." Parks, 451 A.2d at 609.

An exception to the privilege for ordinary work-product is that criminal defendants are entitled to "discover specific types of information within the government's control, including any written record of the defendant's relevant statements." Davis v. United States, 641 A.2d 484, (DC 1994) (citing Super. Ct. R. Crim. P. Rule. 16(a)(3)).

1.6:730      Opinion Work Product

Opinion work-product is material that contains the "fruits of the attorney's …mental processes." Parks v. United States, 451 A.2d 591, 608 (DC 1982). It is the "opinions, judgments, and thought processes of counsel." In re Sealed Case, 124 F.3d 230, 235 (DC Cir. 1997) (quoting In re Sealed Case, 676 F.2d 793, 809-10 (DC Cir. 1982)). See also Director of the Office of Thrift Supervision v. Vinson & Elkins, L.L.P., 168 FRD 445, 446 - 47 (DDC 1996) (suggesting, but not deciding, that a lawyer's interview notes are opinion work-product because "as distinguished from verbatim transcripts or first-person statements….in choosing what to write down and what to omit, a lawyer necessarily reveals his mental processes"); but see In re Sealed Case, 124 F.3d at 236 (holding that interview notes were ordinary work-product because "the context suggests that the lawyer has not sharply focussed or weeded the materials").

The party seeking access to opinion work-product must show "'extreme necessity.'" Parks, 451 A.2d at 608 (quoting United States v. AT&T, 86 FRD 603, Guideline No. 18 at 632 (DDC 1979); see also In re Sealed Case, 124 F.3d at 235 (citing In re Sealed Case, 676 F.2d at 809 - 10; must show "extraordinary justification").

If the material sought is a combination of both ordinary and opinion work-product, courts will review the document in camera to determine what part is ordinary and what is opinion, Parks, 451 A.2d at 608 (citing AT&T, 86 FRD, Guideline No. 3 at 608), and will apply the appropriate standard to each part, id. (citing Saunders v. United States, 316 F.2d 346, 350-51 (1963)). If the material sought is a blend of fact and opinion, courts will apply the extreme necessity test. See id. The party seeking access always prevails in showing extreme necessity if blended material contains "admissible evidentiary facts." Id.

1.6:740      Invoking Work-Product Immunity and Its Exceptions

The right to invoke work-product immunity belongs to both the client and the lawyer. See Hager v. Bluefield Reg'l Med. Ctr., Inc., 170 FRD 70, 76 (DDC 1997) (citing Moody v. IRS, 654 F.2d 795, 801 (DC Cir. 1981)). Government lawyers are also entitled to invoke work product immunity, see Grove v. Dep't of Justice, 802 F. Supp. 506, 514 (DDC 1992) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975)), but they may not withhold evidence of possible criminal conduct from a grand jury, see In re Lindsey, 158 F.3d 1263, 1282-83 (DDC 1998). The immunity can only be invoked by a party to the lawsuit, see Athridge v. Aetna Cas. and Sur. Co., 184 FRD 200, 209 (DDC 1998). The language of Fed. R. Civ. P. Rule 26(b)(3) and of its identical counterpart in the D.C. Superior Court's rules makes this clear.

The party resisting discovery has the burden of showing that the materials are in fact work-product. See Parks v. United States, 451 A.2d 591, 608 (DC 1982) (citing United States v. AT&T, 86 FRD, Guideline No. 14, at 626). When that showing has been made, the burden shifts back to the party seeking discovery to show why the privilege should be overcome. See id (citing AT&T, 86 FRD, Guideline No. 4, at 609).

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

The disclosure of work-product to third parties ordinarily waives the immunity. See In re Lindsey, 158 F.3d 1263, 1282 (DC Cir. 1998) (citing In re Sealed Case, 29 F.3d 715, 719 (DC Cir. 1994) and United States v. AT&T, 642 F.2d 1285, 1300-01 (DC Cir. 1980)); see alsoWichita Land & Cattle Co. v. American Fed. Bank, F.S.B., 148 FRD 456, 459 (DDC 1992) (finding that a law firm waived its work-product claim by inadvertently including privileged documents in a set of boxes made available as part of discovery). "There are instances where disclosure of attorney work product to third parties will not waive the protection, but where disclosure to an adversary in litigation constitutes waiver of attorney-client privilege, it also effects a waiver of the work product rule." Id. at 461 (citing Chubb Integrated Sys. Ltd. v. National Bank of Wash., 103 FRD 52, 63 (DDC 1984)). In determining whether material was "disclosed," courts will consider whether the party that received the documents has learned the "gist" of the material. See id. at 459 (citing Chubb Integrated Sys. Ltd., 103 FRD at 63 (DDC 1984)).

The disclosure of work-product to third parties waives the immunity as to the documents disclosed. See In re United Mine Workers of Am. Employee Benefit Plans Litig. 159 FRD 307, 310 (DDC 1994) (citing Wichita Land & Cattle Co., 148 FRD at 460-61), but does not ordinarily constitute waiver as to the subject matter of the documents. See id. at 312 ("[A] subject matter waiver of the attorney work product privilege should only be found when it would be inconsistent with the purposes of the work product privilege to limit the waiver to the actual documents disclosed.") (citing In re Sealed Case, 676 F.2d 793, 817 (DC Cir. 1982)).

In Rockwell International Corp. v. U.S. Department of Justice, 235 F.3d 598 (2001), a case involving invocation of work-product privilege as a ground for refusing production under Exemption 5 of the Freedom of Information Act, the court observed that the purpose of the work-product privilege is not to protect materials of the attorney, but to "protect the adversary trial process itself." Id. at 605 [quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 864 (DC Cir. 1980)]. The court went on to say that voluntary disclosure to a third person does not constitute waiver of the work-product privilege, unless the disclosure under the circumstances is inconsistent with maintenance of secrecy from the party's adversary. Id. [citing United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1299 (DC Cir. 1980)]. Applying the latter formulation, the court went on to hold that the work-product privilege had not there been waived by disclosure to a Congressional committee, or by selective quotation from the work-product documents in a public report.

However, the "common interest rule" applicable to the attorney-client privilege, see 1.6:490, above, has application also, mutatis mutandis, to work-product immunity. Thus, the disclosure of work-product to third parties may not waive the immunity if the third party "is a lawyer whose client shares an overlapping 'common interest.'" In re Lindsey, 158 F.3d 1263, 1282 (DC Cir. 1998)(dictum) (citing In re Sealed Case, 29 F.3d at 719 and United States v. AT&T, 642 F.2d at 1300-01, and observing that "the President in his private persona shares some areas of common interest with the Office of the President") . The protection provided by the common interest rule is not limited to co-parties. See United Mine Workers, 159 FRD at 313 ("So long as transferor and transferee anticipate litigation against a common adversary on the same or similar issues, they have a strong common interest in sharing the fruits of the trial preparation efforts.") (quoting AT&T, 642 F.2d at 1299).

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

The work-product privilege is waived by the client if the lawyer's conduct is placed "at issue," Hager v. Bluefield Reg'l Med. Ctr., Inc., 170 FRD 70, 78 (DDC 1997) which includes use of the lawyer as an expert witness, see id.

1.6:770      Exception for Crime or Fraud

The crime-fraud exception applies to work product immunity as well as to the attorney-client privilege. Indeed,

An exception or waiver of the work product privilege will also serve as an exception or waiver of the attorney-client privilege, since the coverage and purposes of the attorney-client privilege are completely subsumed into the work product privilege.

In re Sealed Case, 676 F. 2d 793, 812 (DC Cir. 1982).

There are slight differences in the test for the crime/fraud exception as applied in the attorney-client privilege context, on the one hand, and in the work-product immunity context on the other. As explained in In re Sealed Case, 223 F.3d 775, 778 (DC Cir. 2000),

To establish the exception to the attorney-client privilege, the court must consider whether the client "made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act," and establish that the client actually "carried out the crime or fraud." In re Sealed Case, 107 F.3d 46, 49 (D.C.Cir. 1997). To establish the exception to the work-product privilege, courts ask a slightly different question, focusing on the client's general purpose in consulting the lawyer rather than on his intent regarding the particular communication: "Did the client consult the lawyer or use the material for the purpose of committing a crime or fraud?" Id. at 51.

Where it is the lawyer's conduct, rather than the client's, that gives rise to the crime-fraud exception, so that the lawyer is barred from asserting the work product privilege, it may be that the client will still be able to assert it: "[T]he client's interest in preventing disclosures about his case may survive the misfortune of his representation by an unscrupulous attorney." Moody v. IRS, 654 F. 2d 795, 801 (DC Cir. 1981). In determining whether the privilege will prevail,

A Court must look to all the circumstances of the case, including the availability of alternate disciplinary procedures, to decide whether the policy favoring disclosure outweighs the client's legitimate interest in secrecy. No court should order disclosure . . . in discovery if the disclosure would traumatize the adversary process more than the underlying legal misbehavior.

Id.