Alaska R. Evid. 503 commentary

(a) Definitions.

(1) The definition of “client” extends the status of client to

one consulting a lawyer preliminarily with a view to retaining

him, even though actual employment does not result.

McCormick (2d ed.) § 88, at 179. The client need not be

involved in litigation; the rendition of legal service or advice

under any circumstances suffices. 8 Wigmore Evidence § 2294

on (J. McNaughton rev. 1961). The services must be

professional legal services; purely business or personal matters

do not qualify. McCormick (2d ed.) § 88, at 179-80. Under this

subdivision, the term “organization” should be given a broad

interpretation. Several words are omitted from the draft of

proposed Federal Rule 503; this is only a matter of style.

(2) The proposed Federal Rules of Evidence as submitted to

Congress by the United States Supreme Court did not contain a

definition of “representative of the client.” Because of

uncertainty about the extent of the privilege to be granted to

corporate clients, the Advisory Committee came out in favor of

a case-by-case analysis. This approach is rejected here. “An ad

hoc approach to privilege pursuant to a vague standard

achieves the worst of possible worlds: harm in the particular

case because information may be concealed; and a lack of compensating long-range benefit because persisting uncertainty about the availability of the privilege will discour-

age some communications.” Note, Attorney-Client Privilege

for Corporate Clients: The Control Group Test, 84 Harv. L.

Rev. 424, 426 (1970). No definition of “representative of the

client” will be perfect, but the best approach to corporate

privilege developed to date is the “control group” test as

adopted in Alaska Rule 503(a) (2). See City of Philadelphia v.

Westinghouse Electric Corp., 210 F. Supp. 483, 485 (E.D. Pa.

1962). The “control group” test is admittedly restrictive and

has been criticized by some courts. See, e.g., Harper & Row

Publishers, Inc., v. Decker, 423 F.2d 487, 491-92 (7th Cir.

1970), aff’d by an equally divided court per curiam, 400 U.S.

348, 27 L.Ed.2d 433 (1971). However, the restrictive view

brings the corporate privilege more in line with the privilege

available to unincorporated business concerns. Business

organizations should not receive different treatment on

evidence questions in courts of law merely because of

differences in financial structure.

If, for example, A runs a taxi service as a sole proprietorship

with several employees, and one employee driver is involved

in an accident for which A is sued, the employee’s statements

to A’s attorney are not within the attorney-client privilege, even

though A may order his employee to talk with the lawyer. If A

incorporates, the ruling should not change. It should be

sufficient that A and other corporate officers having the

capacity to seek legal advice and to act on it can claim the

benefits of the privilege for private communications with

counsel. A more permissive privilege would result in suppression of information conveyed to attorneys by employees who

are more like witnesses than clients and who have no personal

desire for confidentiality.

(3) A “lawyer” is a person licensed to practice law in any

state or nation. There is no requirement that the licensing state

or nation recognize the attorney-client privilege, thus avoiding

excursions into conflict of laws questions. “Lawyer” also

includes a person reasonably believed to be a lawyer. For

similar provisions, see, Cal. Evid. Code § 950 (West 1966).

Administrative practitioners are not lawyers under Rule 503 (a)

(3), but may be included as “representatives of the lawyer”

under Rule 503(b) (4).

(4) The definition of “representative of the lawyer”

recognizes that the lawyer may, in rendering legal services,

utilize the services of assistants in addition to those employed

in the process of communicating. Thus the definition includes

an expert employed to assist in rendering legal advice. It also

includes an expert employed to assist in the planning and conduct of litigation, though not one employed to testify as a

witness. The definition does not, however, limit “representative

of the lawyer” to experts. Whether his compensation is derived

immediately from the lawyer or the client is not material.

Rule 503 does not expressly deal with communications from

an insured to his insurance company. If the insurance agent to

whom the information is forwarded were viewed as a

“representative of the lawyer” under Rule 503(a) (4), the

privilege would apply. This is the rule in most state courts. See

McCormick (2d ed.) § 91 at 190. Some federal courts have

been unsympathetic to this line of reasoning because of the

peculiar nature of the insurance “situation.” See, e.g., Gottlieb

v. Bresler, 24 F.R.D. 371 (D.D.C. 1959). The demand for

privilege is greater when there is a close connection between

lawyer and agent and they rely upon confidentiality in their

relationship. Thus, the result in any particular case may turn on

the specific facts involved. However, it is clear that no

privilege is available when a statement is being sought in a

controversy between the insured, or one claiming under the

insured, and the insurance company. McCormick (2d ed.) § 91,

at 190-91; Annot., Privilege of Communications or Reports

Between Liability or Indemnity Insurer and Insured, 22

A.L.R.2d 659 (1952).

(5) The requisite confidentiality of communication is

defined in terms of intent. A communication made in public or

meant to be relayed to outsiders or which is divulged by the

client to third persons can scarcely be considered confidential.

See LaMoore v. United States, 180 F.2d 49, 9th Cir. (1950);

McCormick (2d ed.) § 95. The intent is inferable from the

circumstances. Unless intent to disclose is apparent, the

attorney-client communication is confidential. Taking or

failing to take precautions may be considered as bearing on

intent. “Communications which were intended to be confidential but were intercepted despite reasonable precautions remain privileged.” See Subdivision (b) infra; see

also J. Weinstein & M. Berger, Weinstein’s Evidence, § 503(a)

(4) [01] (1979).

Practicality requires that some disclosure be allowed beyond

the immediate circle of lawyer-client and their representatives

without impairing confidentiality. Hence the definition allows

disclosure to persons to whom disclosure is in furtherance of

the rendition of professional legal services to the client,

contemplating those in such relation to the client as “spouse,

parent, business associate, or joint client.” Cal. Evid. Code

§ 952, Comment (West 1966).

(b) General Rule of Privilege. This subdivision sets forth

the privilege, using the previously defined terms: client,

representative of the client, lawyer, representative of the

lawyer, and confidential communication. It is in accord with

the Alaska rules on the subject that are superseded by this rule:

Rule 43(h) (2), Alaska R. Civ. P., and Rule 26(b) (3), Alaska R.

Crim. P.

Common law decisions frequently allowed an eavesdropper

to testify to overheard privileged conversations and approved

admission of intercepted privileged letters. Today the evolution

of more sophisticated techniques of eavesdropping and

interception calls for abandonment of this position. The rule

accordingly adopts a policy of protection against these kinds of

invasion of the privilege.

The privilege extends to communications (1) between client

or his representative and lawyer or his representative, (2)

between lawyer and lawyer’s representative, (3) by client or

his lawyer to a lawyer representing another in a matter of

common interest, (4) between representatives of the client or

the client and a representative of the client, and (5) between

lawyers representing the client. All these communications must

be specifically for the purpose of obtaining legal services for

the client; otherwise the privilege does not attach.

When clients represented by different lawyers pursue a

“joint defense” or “pool information,” subdivision (b) (3)

provides that each client has a privilege as to his own

statements, but that any client wishing to disclose his own

statements made at the joint conference may do so.

When there is no common interest to be promoted by a joint

consultation, the Rule does not apply. Compare, this

subdivision to subdivision (d) (5). The privilege is waived by

the client if he or she raises an issue whose resolution requires

disclosure of otherwise confidential communications. Lewis v.

State, 565 P.2d 846, 850 n.4 (Alaska 1977).

(c) Who May Claim the Privilege. The privilege is, of

course, that of the client, to be claimed by him or by his

personal representative. The successor of a dissolved corporate

client may claim the privilege. N.J. Stat. Ann. § 2A:84A-20(1)

(West 1976).

The lawyer may not claim the privilege on his own behalf.

However, he may claim it on behalf of the client. It is assumed

that the ethics of the profession will require him to do so

except under most unusual circumstances. American Bar

Association Code of Professional Responsibility, Canon 4. His

authority to make the claim is presumed unless there is

evidence to the contrary, as would be the case if the client were

now a party to litigation in which the question arose and were

represented by other counsel.

(d) Exceptions. In general this subdivision incorporates

well established exceptions.

(1) Furtherance of Crime or Fraud. The privilege does not

extend to advice in aid of future wrongdoing. 8 Wigmore

§ 2298. See United Services Automobile Association v. Werley,

526 P.2d 28 (Alaska 1974). The wrongdoing need not be that

of the client. The provision that the client knew or reasonably

should have known of the criminal or fraudulent nature of the

act is designed to protect the client who is erroneously advised

that a proposed action is within the law. No preliminary

finding that sufficient evidence aside from the communication

has been introduced to warrant a finding that the services were

sought to enable the commission of a wrong is required. While

any general exploration of what transpired between attorney

and client would, of course, be inappropriate, it is sometimes

feasible, either at the discovery stage or during trial, so to

focus the inquiry by specific questions as to avoid any broad

inquiry into attorney-client communications. In some cases it

will not be possible to probe without substantially invading the

privileged area. When these cases arise, the court may require

that a prima facie case of wrongdoing be established by

independent evidence before the privilege is denied. Even

where the perimeter of the privileged relationship can be

analyzed without probing too deeply into confidential

communications, such analysis will not be necessary if

independent evidence of wrongdoing is available.

The words “or used” are added to the proposed federal

version of the rule to cover the case of the client who decides

to use legal advice for an improper purpose, when he knew or

should have known he was committing a crime or fraud.

(2) Claimants Through Same Deceased Client. Normally

the privilege survives the death of the client and may be

asserted by his representative. See Subdivision (c) supra.

When, however, the identity of the person who steps into the

client’s shoes is in issue, as in a will contest, the identity of the

person entitled to claim the privilege remains undetermined

until the conclusion of the litigation. The choice is thus

between allowing both sides or neither to assert the privilege,

with authority and reason favoring the latter view. McCormick

(2d ed.) § 94 Uniform Rule of Evidence 502(d) (2) (1974);

Cal. Evid. Code § 957 (West 1966); Kan. Cir. Pro. Stat. Ann.

§ 60426 (b) (2) (1976); N.J. Stat. Ann. § 2A:84A-20(2) (b)

(West 1976).

(3) Breach of Duty by Lawyer or Client. The exception is

required by considerations of fairness and policy when

questions arise out of dealings between attorney and client, as

in cases of controversy over attorney’s fees, claims of

inadequacy of representation, or charges of professional

misconduct. McCormick (2d ed.) § 91; Uniform Rule of Evidence 502(d) (3) (1974); Cal. Evid. Code § 958 (West 1966);

Kan. Civ. Pro. Stat. Ann. § 60-426 (b) (3) (1976); N.J. Stat.

Ann. § 2A:84A20 (2) (c) (West 1976).

(4) Document Attested by Lawyer. When the lawyer acts as

attesting witness, the approval of the client to his so doing may

safely be assumed, and waiver of the privilege as to any

relevant lawyer-client communications is a proper result.

McCormick (2d ed.) § 80, at 180; Uniform Rule of Evidence

502(d) (4) (1974); Cal. Evid. Code § 959 (West 1966); Kan.

Civ. Pro. Stat. Ann. § 60-426 (b) (4) (1976).

(5) Joint Clients. The subdivision states existing law.

McCormick (2d ed.) § 91, at 189-190. For similar provisions,

see Uniform Rule of Evidence 502(d) (5) (1974); Cal. Evid.

Code § 962 (West 1966); Kan. Civ. Pro. Stat. Ann. § 60-426(b)

(5) (1976); N.J. Stat. Ann. § 2A:84A-20(2) (West 1976). The

situation with which this provision deals is to be distinguished

from the case of clients with a common interest who retain

different lawyers. See subdivision (b) (3) of this rule supra.