Attorney-client and work product - Next Generation Bar Exam

1. Under FRE 502(a), when does a disclosure waive the privilege as to undisclosed communications on the same subject?

   Only when the waiver is intentional and the disclosed and undisclosed communications ought in fairness to be considered together. This limits subject-matter waiver to situations where a party uses privileged material selectively.

2. What is the status of the underlying facts that a client communicates to a lawyer?

   The facts are not privileged and may be obtained from other sources or by questioning the client. Only the communication itself is protected.

3. What are the elements of the attorney-client privilege?

   A confidential communication between client and lawyer made for the purpose of obtaining or providing legal advice. The privilege protects communications, not the underlying facts.

4. What is the effect of the presence of the lawyer's agents, such as a paralegal or interpreter, on confidentiality?

   It does not destroy confidentiality when they are needed to facilitate the legal advice. The presence of unnecessary third parties, by contrast, may defeat the privilege.

5. Who holds the attorney-client privilege?

   The client. The lawyer may assert the privilege on the client's behalf, but only the client may waive it.

6. What protection does opinion work product receive?

   Near-absolute protection for an attorney's mental impressions, conclusions, opinions, and legal theories. Ordinary factual work product may be obtained on a showing of substantial need and undue hardship.

7. Under Swidler & Berlin v. United States, what is the effect of the client's death on the attorney-client privilege?

   The privilege survives the client's death. The Court refused to create an exception for criminal investigations after death.

8. Under FRE 502(b), when does an inadvertent disclosure of privileged material not waive the privilege in a federal proceeding?

   When the holder took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify it. Parties may also obtain a court order under Rule 502(d) protecting against waiver.

9. What is the joint-client exception to the attorney-client privilege?

   Communications by jointly represented clients are not privileged in a later dispute between those clients. The privilege still applies against outsiders.

10. What does the crime-fraud exception remove from the attorney-client privilege?

    Communications made to obtain help in committing or planning a future crime or fraud. Communications about past crimes, made to obtain a defense, remain privileged.

11. Under Upjohn Co. v. United States, which corporate employees' communications with counsel may be privileged?

    Communications by employees at any level, made at the direction of superiors to secure legal advice for the corporation. Upjohn rejected the narrower control-group test in federal court.

12. A client tells her lawyer she intends to shred documents before a subpoena is served and asks how to avoid detection. What is the status of the communication?

    It is not privileged, because it seeks help with a future crime. The crime-fraud exception applies to communications in furtherance of planned wrongdoing.

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