Attorney-Client Privilege -
I. State the general circumstances under which the jurisdiction will treat a communication as attorney-client privilege, including identification of all required elements/circumstances.
In West Virginia, in order to assert an attorney-client privilege, three elements must be present: 1) both parties must contemplate that the attorney-client relationship does or will exist; 2) the advice must be sought by the client from the attorney in his or her capacity as a legal adviser; and 3) the communication between the attorney and client must be intended to be confidential. See Syl. pt. 2, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).
This privilege has been further described as “a common law privilege that protects communications between a client and an attorney during consultation.” State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 213 W.Va. 457, 465, 583 S.E.2d 80, 88 (2003) (citing State ex rel. John Doe v. Troisi, 194 W.Va. 28, 35–36, 459 S.E.2d 139, 146–47 (1995)). “Communications made in confidence either by an attorney or a client to one another are protected by the privilege.” Id. (citing State ex rel. U.S. Fidelity and Guar. Co. v. Canady, 194 W.Va. 431, 441, 460 S.E.2d 677, 687). Both verbal and written communications are protected, including electronically transferred communications. Id. (citing Franklin D. Cleckley, HANDBOOK ON EVIDENCE FOR WEST VIRGINIA LAWYERS, §5–4(E)(2)(b), at 5–107 (4th ed. 2000)).
II. Does the jurisdiction recognize/preserve the attorney-privilege for communications among co-defendants in joint-defense or common-interest situations? If so, what are the requirements for establishing two or more co-defendants’ communications qualify?
In West Virginia, attorney-client privilege extends to communications among co-defendants in joint-defense or common-interest situations. The Supreme Court has stated that attorney-client privilege extends “to others who are advised of confidential information at the direction of the attorney.” Recht, 213 W.Va. at 465, 583 S.E.2d at 88 (citing State ex rel. Doe v. Troisi, 194 W.Va. 28, 36, 459 S.E.2d 139, 147). “[T]herefore, the privilege extends to protect communication between the attorney and the agents, supervisors, or attorneys in joint representation.” Id.
Furthermore, attorney-client privilege is not waived by exchange of documents and information between persons with common interests in the subject matter. Chambers v. Allstate Ins. Co., 206 F.R.D. 579, 52 Fed.R.Serv.3d 118 (W.Va. S.D. 2002). “Disclosure to a person with an interest common to that of the attorney or the client normally is not inconsistent with an intent to invoke the work product doctrine’s protection and would not amount to such a waiver . . . .” Id. (quoting In Re Doe, 662 F.2d 1073, 1081 (4th Cir.1981).
The three elements necessary to assert attorney-client privilege (stated above) remain the same when the privilege is asserted in the joint- or common-interest context, and for a third-party seeking to establish quasi-attorney-client privilege. State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 373, 508 S.E.2d 75, 90 (1998) (“If the trial court determines that some or all of the specifically requested communication has been shown to satisfy the elements of the traditional common law attorney-client privilege, then such communication is protected from disclosure by the quasi attorney-client privilege.”) Thus, for attorney-client privilege to be asserted in any instance, one must establish that (1) both the attorney and client must contemplate that the attorney-client relationship does or will exist; (2) the advice was sought by or in behalf of the client from or through the attorney in his or her capacity as a legal adviser; and (3) the communication was intended to be confidential.
III. Identify key pitfalls/situations likely to result in the loss of the ability to claim the protections of the privilege – e.g., failure to assert, waiver, crime-fraud exception, assertion of advice of counsel, transmittal to additional non-qualifying recipients, etc.
Attorney-client privilege is not unlimited. In order to preserve attorney-client privilege, “there must be no evidence that the client intentionally waived the privilege.” Franklin D. Cleckley, HANDBOOK ON WEST VIRGINIA EVIDENCE, § 5-4(E)(2) (1994)).
Instances wherein waiver will or might arise include the crime-fraud exception, assertion of advice of counsel, designation of an attorney to testify on behalf of a party, testifying as to conversations with an attorney, and transmittal to additional non-qualifying recipients.
a. Crime-Fraud Exception
The crime-fraud exception applies even if the attorney is unaware of the client’s criminal or fraudulent intent, and applies, of course, where the attorney knows the forbidden goal.
In West Virginia ex rel. Allstate Ins. Co. v. Madden, the Supreme Court of Appeals articulated two new syllabus points regarding crime-fraud exception and how it relates to attorney-client privilege. “To establish the application of the crime-fraud exception, a party must demonstrate an adequate factual basis exists to support a reasonable person’s good faith belief that an in camera review of the privileged materials would produce evidence to render the exception applicable. In making this prima facie showing, the party must rely on non-privileged evidence, unless the court has not previously made a preliminary determination on the matter of privilege, in which case the allegedly privileged materials may also be considered. Discretion as to whether to conduct an in camera review of the privileged materials rests with the court. If, however, the prima facie evidence is sufficient to establish the existence of a crime or fraud so as to render the exception operable, the court need not conduct an in camera review of the otherwise privileged materials before finding the exception to apply and requiring disclosure of the previously protected materials. The crime-fraud exception operates to compel disclosure of otherwise privileged materials only when the evidence establishes that the client intended to perpetrate a crime or fraud and that the confidential communications between the attorney and client were made in furtherance of such crime or fraud.”
Syl. pt. 7, State of West Virginia ex rel. Allstate Ins. Co. v. Madden, 601 S.E.2d 25, 29 (W. Va. 2004) (emphasis added).
This doctrine can extend to instances where counsel is implicated or alleged to be engaged in conspiracy with a bad actor. For example, in State ex rel. Montpelier U.S. Ins. Co. v. Bloom, 233 W.Va. 258, 757 S.E.2d 788 (2014), the Court determined that the retention agreement between an insurer and a law firm and the law firm’s billing statements were relevant and discoverable in a bad-faith action brought against the insurer, where the plaintiffs alleged that the law firm and insurer entered into civil conspiracy, in which the law firm would create “paid for hire” coverage denial opinions that were not based on proper investigation of facts, and which were designed solely for the purpose of giving the insurer a defense to any bad faith or unfair trade practices claim and to deny proper claims. See Attorney-client privilege, Trial Handbook for West Virginia Lawyers, § 18:7.
b. Assertion of Advice of Counsel
A party may waive attorney-client privilege by asserting claims or defenses that put his or her attorney’s advice at issue. Syl. pt. 8, State ex rel. U.S. Fid. & Guar. Co. v. Canady, 460 S.E.2d 677, 680 (W. Va. 1995). However, the mere assertion of legal advice as a defense does not constitute a waiver of the privilege. State ex rel. Marshall County Com’n v. Carter, 689 S.E.2d 796, 805 (W. Va. 2010). Legal advice by counsel only becomes an issue for attorney-client privilege where “client takes affirmative action to assert a defense and attempts to prove that defense by disclosing or describing an attorney’s communication.” Canady, 460 S.E.2d at 688.
The classical example of this waiver is where an attorney is sued by a client for legal malpractice. However, the mere assertion of reliance on the legal advice of an attorney is sufficient. The party asserting the privilege must take the affirmative step of placing the legal advice they received in issue. Advice is not in issue merely because it is relevant, and it does not come in issue merely because it may have some effect on a client’s state of mind. Rather, it becomes an issue where a client takes affirmative action to assert a defense and attempts to prove that defense by disclosing or describing an attorney’s communication. Mordesovitch v. Westfield Ins. Co., 235 F.Supp.2d 512 (S.D.W. Va. 2002); Horkulic v. Galloway, 665 S.E.2d 284 (W. Va. 2008).
In instances where attorney-client privilege is jeopardized, the burden of establishing and protecting attorney-client privilege always rests upon the person asserting it. To successfully assert privilege, the party must show certain threshold requirements in order to avail himself of the privilege by showing that (1) the communication originated in confidence, (2) that it would not be disclosed, (3) that it was made by an attorney acting in his or her legal capacity for the purpose of advising a client, and (4) that it remained confidential. Canady, 460 S.E.2d at 684.
c. Designation of an Attorney to Testify
When a defendant designates an attorney to testify on its behalf at a depo under W. Va. R. Civ. P. 30(b)(6), such entity waives the attorney client privilege and work product doctrine with regard to matters set forth in the notice of deposition about which their attorney was designated to testify. Syl. pt. 9, State ex rel. United Hosp. Center, Inc. v. Bedell, 484 S.E.2d 199, 203 (W. Va. 1997).
In Bedell, the Court concluded that the hospital could have designated and properly prepared someone to testify at the deposition other than its general counsel to speak on its behalf. Id. at 216. However, the hospital deliberately designated the general counsel. Id. This move risked the possibility that opposing counsel would dive into privileged matters relevant to the topics designated to be addressed during the deposition. Id. From a public policy standpoint, the Court determined that allowing a corporation or organization to designate counsel to testify at a deposition and refuse to answer questions based upon the attorney-client privilege confers unfair advantage on the party, and is contrary to the spirit of Rule 30(b)(6) and the discovery process as a whole. Id.
d. Testifying as to Conversations with an Attorney
“A client who testifies as to conversations with his attorney waives an objection on the grounds of privilege that he might have had on the admission of testimony by the attorney on the matter.” Attorney-client privilege, Trial Handbook for West Virginia Lawyers, § 18:7. In Bennett v. Bennett, 137 W.Va. 179, 70 S.E.2d 894 (1952), overruled in part and on other grounds by Gallaher v. Gallaher, 147 W.Va. 463, 128 S.E.2d 464 (1962), an attorney for the wife in a divorce proceeding moved for a continuance on the wife’s behalf. The wife, however, challenged the validity of her attorney’s motion, by stating that, she had employed the attorney only for the sole purpose “of obtaining a delay in the hearing in the case, out of court, through some arrangement with the attorney for her husband.” Id. at 186, 898. However, evidence was put forward that made it clear “that the attorney was authorized by the wife to appear in the proceeding and to move for a continuance.” Id. On appeal, the Supreme Court determined that a party, by testifying herself as to whether she had authorized her attorney to appear for her in her divorce action, effectively waived any objection on grounds of attorney-client privilege that she might otherwise have had as to admission of that testimony on that matter.
e. Transmittal to Additional Non-Qualifying Recipients
Privilege may be waived if privileged communications are made to third parties. Syl. pt. 1, State ex rel. McCormick v. Zakaib, 430 S.E.2d 316, 316 (W. Va. 1993). If a party turns over material in the course of discovery and fails to claim attorney-client privilege, then such privilege is waived. Syl. pt. 2, McCormick, 430 S.E.2d at 316. However, attorney-client privilege is not negated simply because the documents were received and/or reviewed by a party’s insurer. State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 583 S.E.2d 80, 91 (W. Va. 2003).
When attorney-client privileged documents are inadvertently disclosed during discovery, such disclosure does automatically constitute a waiver of the privilege. In order to determine whether to apply the waiver doctrine to such disclosure, trial courts must consider the following factors: (1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of the measures taken to rectify the disclosure, (5) whether the overriding interest of justice would be served by relieving the party of its error and (6) any other factors found to be relevant. The party inadvertently disclosing the attorney-client privileged communication bears the burden of showing by a preponderance of the evidence that the communication should retain its privileged status. The trial court’s determination of this issue will not be reversed absent an abuse of discretion. State ex rel. Allstate Ins. Co. v. Gaughan, 508 S.E.2d 75 (W. Va. 1998).
In McCormick, when an insurer disclosed the claim files to Mr. McCormick during discovery without objection, any attorney-client privilege was waived which arguably could have been asserted regarding three sealed documents because the information contained within those documents related to the same subject matter as that already disclosed, without disclosing any additional privileged communications. McCormick, 430 S.E.2d at 320.
These syllabus points are in accordance with the holdings of the Fourth Circuit in United States v. Jones, 696 F.2d 1069 (4th Cir. 1982) that “[a]ny disclosure inconsistent with maintaining the confidential nature of the attorney-client relationship waives the attorney-client privilege. Any voluntary disclosure by the client to a third party waives the privilege not only as to the specific communication disclosed, but often as to all other communications relating to the same subject matter.” McCormick, 430 S.E.2d at 319 (quoting Jones, 696 F.2d at 1072).
IV. Identify any recent trends or limitations imposed by the jurisdiction on the scope of the attorney-client privilege.
The recent trends or limitations imposed on the scope of attorney-client privilege in West Virginia more or less mirror recent trends or limitations nationwide. West Virginia case law on the matter of attorney-client privilege has been substantively consistent for many years; and, furthermore, West Virginia has adopted a “new” Rule of Evidence 502, which is substantially the same as its federal counterpart. In fact, new Rule 502 “generally incorporates the current state of West Virginia law” on the issue of attorney-client privilege, providing black-letter rules “regarding waiver in multiple actions,” and “outlin[ing] the factors now used to determine when an inadvertent disclosure does not operate as waiver [sic].” See Michael Spooner, Note, Changes and Updates to the West Virginia Rules of Evidence, 117 W. Va.. L. Rev. Online 2, 6 (2015) (emphasis added). These factors are: “(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.” W. Va. R. Evid. 502(b).
For several years, West Virginia was one of a handful of jurisdictions that had not adopted the American Bar Association’s Model Rule 4..4(b), which requires that a lawyer who has received “a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.” However, West Virginia did eventually adopt this measure, effective January 1, 2015.
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