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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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Kentucky Legal Ethics

1.6  Rule 1.6 Confidentiality of Information

1.6:100 Comparative Analysis of Kentucky Rule

1.6:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 1.6.  The most significant difference between the Kentucky rule and MR 1.6 is in section (b)(1).  KRPC 1.6(b)(1) allows a lawyer to reveal confidential information "to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm."  MR 1.6(b)(1) does not contain the requirement that there be a future criminal act contemplated, but reads simply that a lawyer may reveal confidential information "to prevent reasonably certain death or substantial bodily harm."  In addition, KRPC 1.6 does not contain the explicit allowance that lawyers may seek "advice about the lawyer&'s compliance with these Rules."  MR1.6(b)(2).  Minor language differences include the phrase "consents after consultation" in MR 1.6(a), whereas KRPC 1.6(a) uses "gives informed consent;" and the phrase "information relating to the representation of a client" in MR 1.6(b) is replaced with "such information" in KRPC 1.6(b).

The commentary accompanying the two rules is identical at times, and at other times, merely covers the same material.  The MR 1.6 commentary is generally more specific.  Also, MR 1.6, Comment [6] explains the lawyer&'s duty under MR 1.6(b)(1) as discussed above.  KRPC 1.6, Comment [13] discusses the Kentucky version of the rule {KRPC 1.6(b)(1)}.

1.6:102 Model Code Comparison

KRPC 1.6 eliminates the two-pronged duty under the Model Code in favor of a single standard protecting all information about a client "relating to representation."  Under DR 4-101, the requirement applied to information protected by the attorney-client privilege and to 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 likely to be detrimental to the client." EC 4-4 added that the duty differed from the evidentiary privilege in that it existed "without regard to the nature or source of information or the fact that others share the knowledge."  KRPC 1.6 imposes confidentiality on information relating to the representation even if it is acquired before or after the relationship existed.  It does not require the client to indicate information that is to be confidential, or permit the lawyer to speculate whether particular information might be embarrassing or detrimental. 

KRPC 1.6(a) permits a lawyer to disclose information where impliedly authorized to do so in order to carry out the representation.  Under DR 4-101(B) and (C), a lawyer was not permitted to reveal "confidences" unless the client first consented after disclosure. 

KRPC 1.6(b) redefines the exceptions to the requirement of confidentiality.  Regarding KRPC 1.6(b)(1), DR 4-101(C)(3) provided that a lawyer "may reveal [t]he intention of his client to commit a crime and the information necessary to prevent the crime." This option existed regardless of the seriousness of the proposed crime. 

With regard to paragraph (b)(2){KRPC 1.6(b)(2)}, DR 4-101(C)(4) provided that a lawyer may reveal "[c]onfidences or secrets necessary to establish or collect his fee or to defend himself or his employers or associates against an accusation of wrongful conduct."  KRPC 1.6(b)(2) enlarges the exception to include disclosure of information relating to claims by the lawyer other than for the lawyer&'s fee; for example, recovery of property from the client.

1.6:200 Professional Duty of Confidentiality

1.6:210 Definition of Protected Information

KRPC 1.6(a) requires that any information "relating to representation of a client" must not be revealed by the lawyer, unless the client "consents after consultation."  Confidential information must remain confidential even after the lawyer/client relationship has ended.  KRPC 1.6, Comment [23].  Generally, any information not "generally known" is subject to the confidentiality rule.  In addition, confidential information may come from any source; it is not limited to communications between lawyer and client.  ALI-LGL § 59 (2001).  [See Exceptions to Duty of Confidentiality  -- In General, infra, at 1.6:300, for further information about what constitutes privileged information in Kentucky.]

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

KRPC 1.6, Comment [4] explains that a lawyer&'s duty to hold client information in confidence flows from the belief that "a client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter."  According to the Restatement, related duties include supervision of lawyer and nonlawyer personnel and appropriate assertion of privileges on the client&'s behalf.  ALI-LGL § 60.

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

A lawyer may not use or disclose confidential information to the client&'s detriment.  ALI-LGL, § 60.  [See Lawyer&'s Use of Client Information, infra, at 1.8:300.]

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

There are no Kentucky authorities that specifically address this issue. Where a lawyer undertakes the representation of multiple parties in a transaction or in litigation, and no disqualifying conflict of interest precludes that, or the clients grant their fully informed consent, lawyers are advised to establish at the outset an understanding with the clients involved concerning the impact of the joint representation on the confidentiality requirements of KRPC 1.6.

1.6:250 Information Imparted in Lawyer Counseling Programs

The Kentucky Bar Association&'s Lawyers Helping Lawyers Committee (LHL) and Kentucky Lawyer Assistance Program (KYLAP) are programs designed to assist members with alcohol and substance abuse problems that may interfere with the lawyers&' personal and professional lives.  The Kentucky Bar Association initiated KYLAP in 2002 as a full-time program to complement the long-standing and successful voluntary LHL efforts. 

Any member of the Kentucky legal community may contact KYLAP to obtain information about KYLAP&'s services or to request assistance from KYLAP regarding an actual or potential impairment (defined as any "mental, psychological or emotional condition that impairs or may foreseeably impair a person&'s ability to practice law or serve on the bench").  Any such communication with KYLAP will be confidential in nature and will be held in strict confidence by KYLAP&'s staff and by all other persons involved in the implementation and delivery of KYLAP&'s services.  SCR 3.950

In addition to self-referrals, third-parties may also contact KYLAP and request or suggest that the Program offer assistance to a member of the Kentucky legal community who is suffering or may be suffering from actual or potential impairment.  This person can be assured that all communications with KYLAP will be confidential in nature and will be held in strict confidence. Furthermore, any person who contacts KYLAP pursuant to this provision will be immune from any liability to the person who is the subject matter of the contact.  SCR 3.960.  Any agency of the Supreme Court of Kentucky may also make a referral to KYLAP, but such an agency may only make contact with the Program after obtaining authorization from the person who is the subject of the proposed assistance.  SCR 3.970.  The Supreme Court too may assign appropriate tasks and responsibilities to KYLAP relating to the evaluation of an impairment or the monitoring of a person&'s progress toward recovery from impairment as part of the Court&'s final disposition of any application for admission to the bar, petition for temporary suspension, charge of professional misconduct or application for restoration or reinstatement, where an issue of impairment has been raised in the proceeding, provided that in no event KYLAP has become involved in any proceeding prior to the final disposition of that proceeding without the consent of the lawyer. SCR 3.980.

All communications to KYLAP and all information gathered, records maintained and actions taken by KYLAP will be confidential, will be kept in strict confidence by KYLAP&'s staff and volunteers, will not be disclosed by KYLAP to any person or entity, including any agency of the Court and any department of the Association, and will be excluded as evidence in any civil, criminal or administrative proceeding and in any proceeding before the Court, the Board of Governors or the Office of the Bar Admissions.  SCR 3.990

Funding for KYLAP derives from the annual dues collected by the KBA.  KYLAP may also charge reasonable and appropriate fees for services rendered and may accept monetary gifts in support of its activities.  See SCR 3.910.

1.6:260 Information Learned Prior to Becoming a Lawyer

There is no Kentucky authority on this subject.

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

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

According to KRPC 1.6(a), information relating to the representation of a client must not be revealed unless the client consents after consultation or the disclosure is "impliedly authorized."  According to the commentary to KRPC 1.6, disclosure is implied "when appropriate in carrying out representation."  By way of example, the commentary notes that a lawyer may "admit[] a fact that cannot properly be disputed."  KRPC 1.6, Comment [7].

1.6:320 Disclosure When Required by Law or Court Order

KRPC 1.6(b)(3) allows a lawyer to reveal confidential information in order to "comply with other law or a court order."  However, KRPC 1.6, Comment [21] provides that "[w]hether another provision of law supercedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against such a supersession."  Instances when a lawyer may be compelled by the law or by a court to reveal confidential information include where the lawyer is to be a witness in the matter and where the court requires that certain pieces of evidence be turned over.  ALI-LGL § 62.

1.6:330 Disclosure in Lawyer&'s Self-Defense

KRPC 1.6(b)(2) allows a lawyer to reveal confidential information "to the extent the lawyer reasonably believes necessary" to defend himself or herself in a controversy with a client or regarding his/her actions during representation.  The commentary explains that the lawyer need not wait until an action has been filed to reveal confidential information under this rule.  KRPC 1.6, Comment [18].  The lawyer may reveal this information to defend himself even where the complaining party is not the client.  ALI-LGL § 64.

1.6:340 Disclosure in Fee Dispute

KRPC 1.6(b)(2) allows a lawyer to reveal confidential information "to the extent the lawyer reasonably believes necessary" to settle a controversy with a client.  According to the commentary, "[a] lawyer entitled to a fee is permitted…to prove the services rendered in an action to collect it."  However, the lawyer should make every effort to collect the fee without resorting to revelation of confidential information.  KRPC 1.6, Comment [18]. KBA E-379 (1995) forbids lawyers from revealing client information to a credit reporting agency where the purpose went beyond just collecting a fee. In addition, KBA E-253 (1981) found that a client&'s credit history should be revealed only if the client consents in writing. 

1.6:350 Disclosure to Prevent a Crime

KRPC 1.6(b)(1) allows a lawyer to reveal confidential information only when a client contemplates a future crime that "the lawyer believes is likely to result in imminent death or substantial bodily harm."  [See Disclosure to Prevent Death or Serious Bodily Injury, infra, at 1.6:360.]  In addition, a lawyer must not "counsel or assist a client in conduct that is criminal or fraudulent.  See KRPC 1.2(d).KRPC 1.6, Comment [11].

1.6:360 Disclosure to Prevent Death or Serious Bodily Injury

KRPC 1.6(b)(1) allows a lawyer to reveal confidential information "to the extent the lawyer reasonably believes necessary" only when a client contemplates a future crime that "the lawyer believes is likely to result in imminent death or substantial bodily harm."  The commentary suggests factors a lawyer should consider in deciding whether to reveal confidential information in this setting:  "the nature of the lawyer&'s relationship with the client, and with those who might be injured by the client, the lawyer&'s own involvement in the transaction and factors that may extenuate the conduct in question."  The commentary also suggests that a lawyer may choose to try to talk the client out of committing the crime, or he may choose not to do anything at all.  KRPC 1.6, Comment [14].

1.6:370 Disclosure to Prevent Financial Loss

Neither Rule 1.6 nor the commentary mentions disclosure to prevent financial loss.  Over 40 jurisdictions do allow lawyers to reveal confidential information "to prevent substantial financial injury."  ALI-LGL § 67.

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

When a lawyer gains possession of physical evidence relating to a crime that has been committed by his/her client, the attorney-client privilege continues to operate.  However, physical objects themselves do not fall under the privilege because they are not "communications." [See Privileged Communications, infra, at 1.6:410.]  Nonetheless, the act of a client handing a piece of evidence to a lawyer would qualify as a communication; therefore, a lawyer could not be forced to reveal the source of the evidence in that situation. Fortune, Underwood & Imwinkelried, Modern Litigation and Professional Responsibility Handbook:  The Limits of Zealous Advocacy § 14.4 (2d Ed. 2001).

1.6:390 Confidentiality and Conflict of Interest

Rules governing conflicts of interest are designed to preserve twin goals:  that lawyers will be loyal to clients, and that the client&'s confidential information will be protected.  Fortune, Underwood & Imwinkelried, Modern Litigation and Professional Responsibility Handbook:  The Limits of Zealous Advocacy § 3.3 (2d Ed. 2001).

1.6:395 Relationship with Other Rules

KRPC 1.6, Comments [11] and [12] assert that with regard to client confidentiality, a lawyer may not counsel or assist a client in conduct that is criminal or fraudulent under Rule 1.2(d), and a lawyer has a duty under Rule 3.3(a)(4) not to use false evidence.

1.6:400 Attorney-Client Privilege

According to KRPC 1.6, Comment [5], confidentiality springs from both evidence rules and professional ethics rules.  The attorney-client privilege, the evidentiary prong, "applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.  The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law."  In addition, the rule of confidentiality applies to a much more broad class of information than the attorney-client privilege.  Confidentiality applies to any information "relating to the representation, whatever its source."  [See Privileged Communications, infra, at 1.6:410].

KRE 503 governs the lawyer-client privilege in Kentucky.  According to United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991), the privilege exists both to "assure[] that a person seeking legal advice may do so safely" and to allow a lawyer to most effectively represent his/her client by encouraging the client to reveal all pertinent information.  The attorney-client privilege is strictly construed by courts in all jurisdictions. Robert G. Lawson, The Kentucky Evidence Law Handbook 232 (3d Ed. 1993).  See also Stidham v. Clark, 74 S.W.3d 719, 722-23 (Ky. 2002)(finding that "testimonial privileges are generally disfavored and should be strictly construed, and explaining that the Kentucky evidence rules do not allow for "common law development of testimonial privileges").

1.6:410 Privileged Communications

KRE 503(b) protects "a confidential communication made for the purpose of facilitating the rendition of professional legal services."  What qualifies as a "communication," however, is sometimes unclear.  KRE 503 does not define "communication."  However, Kentucky case law has identified some relevant factors.  "Verbal exchanges" are normally considered communications.  In addition, "physical acts that are disclosive in nature" also qualify as communications.  An example would be the delivery of a document.  See, e.g. Phoenix Insurance Co. v. Wintersmith, 30 Ky. L. Rptr. 369, 98 S.W. 987 (1907); Peters v. Commonwealth, 477 S.W.2d 154 (Ky. 1972).  However, in Williams v. Chrans, 742 F. Supp. 472 (N.D. Ill. 1990), the court held that a law clerk could testify to the "appearance and demeanor" of a client in a murder case. Robert G. Lawson, The Kentucky Evidence Law Handbook 233-34 (3d ed. 1993).  [See sections 1.6:420-440 and 1.6:460].

1.6:420 Privileged Persons

KRE 503(a)(5) defines a "confidential" communication as one "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication."   Therefore, where a client reveals information in the presence of third parties, that information is not privileged, unless the third party was a "person essential to the rendition of the legal services" such as a legal secretary or paralegal.  Robert G. Lawson, The Kentucky Evidence Law Handbook 237 (3d Ed. 1993).  See also LGL-ALI § 70.

1.6:430 Communications "Made in Confidence"

[See Privileged Persons, supra, 1.6:420.]  See also Lovell v. Winchester, 941 S.W.2d 466 (Ky. 1997)(holding that the attorney-client privilege attached where a client visited the lawyer&'s office, left an original document pertaining to the representation, but did not hire the attorney).

1.6:440 Communications from Lawyer to Client

KRE 503(b) provides that communications "[b]etween the client...and the client&'s lawyer…" are protected, implying that the privilege covers both communications made by the client and communications made by the lawyer.

1.6:450 Client Identity, Whereabouts, and Fee Arrangements

KRE 503 contains no guidance as to whether it is appropriate to reveal a client&'s identity or a fee arrangement.  While the general rule is that client identity and information about fee arrangements are not privileged, a court may make an exception if the revelation of such information would "be harmful to the objectives of the privilege." Robert G. Lawson, The Kentucky Evidence Law Handbook 238 (3d Ed. 1993).  In other words, if disclosing the information would in effect reveal a "confidential communication between client and attorney" that information may be privileged.  Lawson, 240See also Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960); KBA E-253 (1981) (explaining that some attorney-client relationships that of themselves imply that the client wishes his/her identity to be confidential, such as estate planning and counseling about possible criminal liability).

1.6:460 Legal Assistance as Object of Communication

Unfortunately, "legal assistance" is not easily defined.  The following cases identify relevant factors.  In Belcher v. Somerville, 413 S.W.2d 620 (Ky. 1967), the court found no privilege applied where a client spoke to a lawyer who was also a banker, where the statement was made when the lawyer was in working in the scope of his duties as a banker.  The court in Denunzio&'s Receiver v. Scholtz, 117 Ky. 182, 77 S.W. 715 (1903) held that where a lawyer was hired to create articles of incorporation, a discussion with the client centering around gifts made to an employee did not fall within the privilege.  Hughes v. Meade, 453 S.W.2d 538 (Ky. 1970) involved an attorney hired specifically to deliver stolen property to a police station.  The court found that no legal services were performed and the client had no reason to expect the protection of the privilege. Robert G. Lawson, The Kentucky Evidence Law Handbook 236 (3d Ed. 1993).

1.6:470 Privilege for Organizational Clients

KRE 503(a)(1) includes corporations, association and other entities in its definition of "client." According to the drafters of the Kentucky Rules of Evidence, KRE 503 is meant to contain "‘the principles of Upjohn Co. v. United States.&'" Robert G. Lawson, The Kentucky Evidence Law Handbook 246 (3d ed. 1993). The most clear guidance as to who may qualify for the privilege comes from Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).  Upjohn rejected the "control group" test that held that only those who had a substantial role in corporate decision-making were eligible for the privilege.  After Upjohn, any employee whose communications are made to corporate counsel as part of that attorney&'s legal services to the corporation, when the employee is aware that that is the case, is eligible for the privilege.

KRE 503(a)(2)(B) reflects Upjohn in its definition of "[r]epresentative of the client."  First, any employee or representative must make a confidential communication.  Second, that communication must be made "[i]n the course and scope of his or her employment."  Third, the communication must "[c]oncern[] the subject matter of his or her employment."  Fourth, that communication must be made in order to carry out legal services.

1.6:475 Privilege for Governmental Clients

The privilege exists for governmental entities under the same circumstances as for corporate entities.  [See Privilege for Organizational Clients, supra, at 1.6:470].  Open records laws may narrow the privilege for some governmental agencies.  LGL-ALI § 74.

1.6:480 Privilege of Co-Clients

KRE 503(d)(5) explains that "joint clients" enjoy no privilege.  Joint clients are those who have the same attorney.  See also LGL-ALI § 75.

1.6:490 Common-Interest Arrangements

KRE 503(b)(3) allows for the privilege to attach where there are communications between a client and a lawyer for "another party in a pending action...concerning a matter of common interest therein."  See also LGL-ALI § 76.

1.6:495 Duration of Attorney-Client Privilege

The attorney-client privilege is available to a client during the representation or at any point after the representation ends.  LGL-ALI § 77. KRPC 1.6, Comment [23] maintains that the duty of confidentiality continues after the client-lawyer relationship has terminated.

1.6:500 Waiver of Attorney-Client Privilege

Because the attorney-client privilege is personal to the client, the client must waive the privilege, or make a disclosure of the privileged information in order to lose it.  Robert G. Lawson, The Kentucky Evidence Law Handbook 248 (3d ed. 1993).  KRE 509 and 510 govern waiver of the privilege in Kentucky.

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

A client may waive the attorney-client privilege by agreeing to waive the privilege, by failing to object to evidence, or by authorizing (impliedly or expressly) the attorney to disclose protected information.  LGL-ALI § 78.

1.6:520 Waiver by Subsequent Disclosure

KRE 509 explains that waiver occurs when "the holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter."  However, "if the disclosure itself is privileged," no waiver has occurred.  Furthermore, under KRE 510, "[a] claim of privilege is not defeated" if the disclosure was "compelled erroneously" or was "made without opportunity to claim the privilege."

Courts disagree as to the effect of inadvertent disclosure of privileged information by the client. Some courts find that the privilege has been waived.  See, e.g., In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989); United States v. Plache, 913 F.2d 1375 (9th Cir. 1990).  Other courts have held that the privilege is not lost where there has been a truly inadvertent disclosure. United States v. De La Jara, 973 F.2d 746 (9th Cir. 1992); Georgetown Manor, Inc. v. Ethan Allen, Inc., 753 F.Supp. 936 (S.D.Fla. 1991).  The analysis, at least in federal courts, has been fact-centered and ad hoc.

1.6:530 Waiver by Putting Assistance or Communication in Issue

A client who claims that he or she acted on the advice of counsel, and therefore, puts the privileged communication in issue, loses the protection of the privilege.  LGL-ALI § 80.

1.6:600 Exceptions to Attorney-Client Privilege

KRE 503(d) contains the exceptions to the attorney-client privilege in Kentucky.

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

KRE 503(d)(2) explains that there is no privilege for "claimants through the same deceased client" whether through testacy, intestacy, or inter vivos claims.

1.6:620 Exception for Client Crime or Fraud

KRE 503(d)(1) explains that there is no privilege for clients who seek representation in order "to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud."  Note that this exception does not apply to past crimes. LGL-ALI § 82.  See also Steelvest, Inc. v. Scansteel Service Ctr., Inc., 807 S.W.2d 476 (Ky. 1991).

1.6:630 Exception for Lawyer Self-Protection

[See Disclosure in Lawyer&'s Self-Defense, supra, at 1.6:330 and Disclosure in Fee Dispute, supra, at 1.6:340.]

1.6:640 Exception for Fiduciary-Lawyer Communications

The Restatement provides that communications between a lawyer and a fiduciary such as a trustee are not privileged if a claim of breach of fiduciary duties is brought by a beneficiary and the communication is "relevant to the claimed breach."  LGL-ALI § 84.

1.6:650 Exception for Organizational Fiduciaries

Communications between a lawyer and an organizational fiduciary may not qualify for the privilege if corporate managers have been charged with a breach of fiduciary duties to constituents, the communication "relates directly to [the] charges," and there is a need for the information. LGL-ALI § 85.

1.6:660 Invoking the Privilege and Its Exceptions

A client (or the client&'s guardian/conservator/personal representative/successor/trustee/or the representative of an entity) or one who was the lawyer (or the lawyer&'s representative) when the privileged communication was made may object to the introduction of privileged communications.  KRE 503(c).  Normally, the objection must be contemporaneous to the offer of the evidence.  LGL-ALI § 86.

1.6:700 Lawyer Work-Product Immunity

The following quote attempts to explain the differences between the work-product doctrine and the attorney-client privilege:

The protection given both attorney-client communication and "work product" arises from a common assumption – that a lawyer cannot provide full and adequate representation unless certain matters are kept beyond the knowledge of adversaries.  The foci of the two doctrines are different, however.  With the attorney-client privilege, the principal focus is on encouraging the client to communicate freely with the lawyer; with the work-product protection, it is on encouraging careful and thorough preparation by the lawyer.  As a result, there are differences in the scope of the protection.  For example, the privilege extends only to client communications, while the work-product protection encompasses much that has its source outside client communications.  At the same time, the privilege extends to attorney-client communications whenever any sort of legal services are being provided, but the work-product protection is limited to preparations for litigation.

Walter A. Connolly, III, Attorney-Client Communications and Work-Product, Ky. Bench & Bar, 13-14, July 2000, quoting Edna Selan Epstien, The Attorney-Client Privilege and the Work-Product Doctrine, American Bar Association Section of Litigation at 287-288 (3d ed. 1997).

1.6:710 Work-Product Immunity

The United States Supreme Court first recognized the work product privilege as a doctrine separate from the attorney-client privilege in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The work product privilege, however, is so closely related to the attorney-client privilege that the two are still frequently conflated in opinions and secondary sources. 

The work product privilege attempts to balance liberal discovery and attorneys&' privacy  needs.  Hickman at 507-511.  Federal Rule of Civil Procedure 26(b)(3) and Kentucky Rule of Civil Procedure 26.02(3) (which duplicates the language of Fed.R.Civ.P. 26(b)(3)) largely codify the privilege in Kentucky.  It applies only to materials prepared in anticipation of litigation, though a law clerk&'s work product would also be protected under the privilege.  Under Fed.R.Civ.P. 26(b)(3) and Hickman, a party may assert the privilege to protect materials prepared by or for that party or that party&'s attorney or other qualifying representative.  See also United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Wal‑Mart Stores v. Dickinson, 29 S.W.3d 796 (Ky. 2000) and Snider and Ellins, Corporate Privileges and Confidential Information §3.06 n.4 (2000). 

The privilege can be overcome by showing the opposing party&'s  "substantial need" for the materials and its "undue hardship" in trying to obtain a substantial equivalent for the materials.  The burden of proving that a privilege exists falls on the party trying to prevent disclosure.  A trial court should protect confidences, but should narrowly construe privileges to allow discovery of relevant evidence. See Sisters of Charity Health System v. Raikes, 984 S.W.2d 464 (Ky. 1998) and Shobe v. EPI Corp., 815 S.W.2d 395 (Ky. 1991).

The Sixth Circuit has held that the question of whether the work-product doctrine applies is always a question of federal law. Walter A. Connolly, III, Attorney-Client Communications and Work-Product, Ky. Bench & Bar, 13-14, July 2000, citing Toledo Edison Co. v. G.A. Technologies, Inc., 847 F.2d 335, 338-341 (6th Cir. 1988).

KBA E-395 (1997) further provides that when a lawyer is discharged, the lawyer must return the client&'s file, but may retain any "work product."  However, any "[d]ocuments or other relevant evidence, the original of which may be required for trial preparation or as evidence for trial, must be surrendered in original form." See also LGL-ALI § 87.

1.6:720 Ordinary Work Product

Work product may be categorized as either "fact" or "ordinary" work product or "opinion" work product.  Some courts hold that only fact work product may be overcome by the "substantial need/undue hardship" showings, or that opinion work product is absolutely protected. See Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); Frontier Refining, Inc. v. Gorman-Rupp Co., 10th Cir., 136 F.3d 695, 704 n.12 (1998) and Pittman v. Frazer, 8th Cir., 129 F.3d 983 (1997).

1.6:730 Opinion Work Product

As opposed to ordinary work product, opinion work product includes notes made by a lawyer reflecting mental impressions and conclusions about a case made in anticipation of litigation.  In Upjohn Co. v. United States, 449 U.S. 383, 401 (1981), notes made by an attorney during privileged oral interviews were found to be "work product based on oral statements."  As such, to the extent they "reveal communications, they are, in this case, protected by the attorney-client privilege.  To the extent they do not reveal communications, they reveal the attorneys&' mental processes in evaluating the communications.  As Fed.R.Civ.P. 26 and Hickman make clear, such work product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship."  While the Court noted that some courts have found that "no showing of necessity can overcome protection of work product which is based on oral statements from witnesses, see, e.g., In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir. 1973) (personal recollections, notes, and memoranda pertaining to conversation with witnesses) and In re Grand Jury Investigation, 412 F.Supp. 943, 949 (E.D.Pa. 1976) (notes of conversation with witness ‘are so much a product of the lawyer&'s thinking and so little probative of the witness&'s actual words that they are absolutely protected from disclosure&')," it declined to adopt an absolute rule granting the privilege to work product based on the oral statements of witnesses.  "We are not prepared at this juncture to say that such material is always protected by the work-product rule," said the Court, but it would require a greater hardship than was suffered by the Government in Upjohn, where the hardship was that the Government had to re-interview all of the employees, some of whom were in foreign countries.  Upjohn, at 401-02.

1.6:740 Invoking Work-Product Immunity and Its Exceptions

An objection to the introduction of evidence based on the work-product doctrine must be specific.  See Federal Rule 26(b)(5).  Failure to give adequate notice of a refusal to produce evidence can result in a waiver of the protection of the doctrine.  One who wishes to withhold information under the work-product doctrine should seek a protective order under Federal Rule 26(c).  The court will likely conduct an in camera inspection to determine whether the work-product doctrine applies. Walter A. Connolly, III, Attorney-Client Communications and Work-Product, Ky Bench & Bar, 16, July 2000.

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

Typically, any voluntary disclosure waives the attorney-client privilege because such a disclosure is inconsistent with the confidential relationship that is the basis of the privilege. See, e.g. Wichita Land & Cattle Co. v. American Fed. Bank, F.S.B., D. D.C. 148 F.R.D. 456 (1992), citing In re Sealed Case, 219 U.S. App. D.C. 195, 676 F.2d 793, 818 (D.C. Cir. 1982) and Chubb Integrated Systems v. National Bank of Wash., 103 F.R.D. 52 (D.D.C. 1984).  An involuntary or inadvertent disclosure usually does not waive the attorney-client privilege. See, e.g. Travelers Cas. and Sur. Co. v. Excess Ins. Co. Ltd., S.D.Ohio, 197 F.R.D. 601, (2000) and Van Hull v. Marriott Courtyard, N.D.Ohio, 63 F.Supp.2d 840 (1999).

The work product privilege, however, does not exist primarily to protect the confidential attorney-client relationship, but rather to protect the adversarial system by making trial preparation materials undiscoverable.  Therefore, under the work product privilege, disclosures that are inconsistent with maintaining secrecy from an opposing party are deemed to waive the privilege.  See United States v. American Telephone and Telegraph Co., D.C. Cir., 642 F.2d 1285 (1980); Pittman v. Frazer, 8th Cir., 129 F.3d 983 (1997); Picard Chemical Inc. Profit Sharing Plan v. Perrigo Co., W.D.Mich., 951 F.Supp. 679 (1996) and Snider and Ellins, Corporate Privileges and Confidential Information §3.07 (2000).  Guided by this concept of waiver, some jurisdictions extend the concept to cover inadvertent disclosures of work product.

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

When a client brings a communication between him/herself and the attorney into issue, work-product immunity is lost.  For example, if a client charges that he or she acted in a certain way because of the advice of the lawyer, that client loses the  ability to claim immunity as to pertinent work product.  A client can also lose work-product immunity by attacking the quality of the lawyer&'s services.  LGL-ALI § 92.

1.6:770 Exception for Crime or Fraud

As with the attorney-client privilege, a client loses work-product protection for both ordinary and opinion work-product when he or she uses the lawyer&'s services to commit a crime or to obtain assistance in committing a crime.  As with the attorney-client privilege, the exception to the work-product protection applies only to future or on-going crimes, but not those already completed.  LGL-ALI § 93.

1.6:780 Waiver of Work-Product Immunity by Involuntary or inadvertent Acts

An involuntary or inadvertent disclosure usually does not waive the attorney-client privilege. See, e.g. Travelers Cas. and Sur. Co. v. Excess Ins. Co. Ltd., S.D.Ohio, 197 F.R.D. 601, (2000) and Van Hull v. Marriott Courtyard, N.D.Ohio, 63 F.Supp.2d 840 (1999).  In determining whether a work product privilege has been waived by inadvertent work product disclosures, courts use one of three tests:  [1] an objective or "strict responsibility" test, [2] a balancing test, or [3] a subjective intent test. See 6 Philipps, Kentucky Practice: Rules of Civil Procedure Annotated Rule 26.02 (1995).  Using the objective test, a court looks only to whether confidentiality was breached by the inadvertent disclosure; if it was, the privilege is destroyed.  Courts using the objective test have held that where there has been a disclosure of work product to opposing parties, the privilege is lost, even if the disclosure is unintentional or inadvertent. In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989); In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984). Using the balancing test, a court takes into account the facts surrounding the particular disclosure and examines the precautions taken to protect the privilege.  See Transamerica Computer Co. v. International Bus. Machines Corp., 573 F.2d 646, 650‑52 (9th Cir. 1978) (privilege waived only if privilege holder voluntarily discloses communication); Georgetown Manor, Inc. v. Ethan Allen, 753 F. Supp. 936, 938‑39 (S.D. Fla. 1991) (inadvertent production by attorney does not waive client&'s privilege); Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 46, 50‑52 (M.D. N.C. 1987) (limited inadvertent disclosure will not necessarily result in waiver); Hartford Fire Ins. Co. v. Garvey, 109 F.R.D 323, 329 (N.D. Cal. 1985) (inadvertent disclosure may constitute waiver), cited in Bales and Hamilton, Kentucky Law Issue: Workplace Investigations in Kentucky  27 N. Ky. L. Rev. 201 (2000).  The court uses five factors to conduct a "totality of the circumstances" evaluation: [1] the reasonableness of the precautions taken, [2] the time taken before correcting the erroneous disclosure, [3] the scope of discovery, if discovery is involved, [4] the extent of the disclosure, and [5] overriding issues of fairness. See, e.g. Harmony Gold USA, Inc. v. FASA Corp., N.D. Ill., 169 F.R.D. 113 (1996).  A court rarely finds waiver using the subjective intent test because it looks to what the disclosing party intended; by definition an inadvertent disclosure is unintended.

Kentucky has not yet addressed which of the three divergent tests it will use to determine if waiver has occurred. There is no clear majority rule.