TITLE FIVE — PRIVILEGES AND DISQUALIFICATION
Rule 503. Attorney-Client Privilege
Definitions. As used in this section, the following words shall have the following meanings:
A “client” is a person, public officer, or corporation, association, or other entity, either public or private, who is rendered professional legal services by an attorney, or who consults an attorney with a view to obtaining professional legal services.
A “representative of the client” may include the client’s agent or employee.
An “attorney” is a person who is authorized to practice law. The term includes the State Public Defender, an assistant public defender, and counsel appointed by a judge under 3 R. Stat. §§ 161.101, 161.109, and 161.201, and includes a state attorney and the Solicitor General in the representation of the State or of a government agency.
A “representative of the attorney” is one used by the attorney to assist the attorney in providing professional legal services.
A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is made to obtain or provide professional legal services to the client, and those reasonably necessary for the transmission of the communication.
A “communication” includes a message in the proceeding communications of a case, a direct message between accounts, a message in a private or restricted channel, a message in an in-game channel, a voice communication, a document, and an item of electronically stored information. The medium of a communication does not determine whether it is confidential; the intention of the client and the composition of the audience determine it.
A person who consults another in the reasonable belief that the other is an attorney is a client for the purposes of this section, whether or not the belief proves correct, as to communications made before the person learned otherwise.
General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent others from disclosing confidential communications made for the purpose of obtaining or providing professional legal services to the client as follows:
between the client or the client’s representative and the client’s attorney or the attorney’s representative,
between the client’s attorney and the attorney’s representative,
between those involved in a joint defense,
between representatives of the client or between the client and a representative of the client, or
among attorneys and their representatives representing the same client.
Who May Claim the Privilege. The privilege may be claimed by the client, the successor, trustee, or similar representative of a corporation, association, or other organization whether or not in existence at the time the privilege is claimed. The attorney or the attorney’s representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.
The Organizational Client; Control of the Privilege.
The Entity Is the Client. Where the client is a corporation, association, agency, department, or other organization, the privilege belongs to the organization and not to any officer, director, member, employee, or agent of it. Control of the privilege is in the person or body then authorized to act for the organization in the matter, and it passes with that authority.
Communications with Constituents. A communication between the organization’s attorney and an officer, employee, or agent of the organization is within Rule 503(b) where it is made at the direction of the organization for the purpose of obtaining or providing legal services to the organization and concerns a matter within the scope of that person’s duties. The privilege so arising is the organization’s alone.
The Constituent’s Own Privilege. An officer, employee, or agent has no personal privilege in such a communication unless that person separately retained or consulted the attorney for that person’s own legal services and the attorney so understood. An attorney who confers with a constituent of an organizational client shall, where the interests of the constituent and of the organization may diverge, inform the constituent that the attorney represents the organization, that the privilege belongs to the organization, and that the organization may waive it. A failure so to inform does not create a privilege in the constituent, but the court may consider it in determining whether the constituent reasonably believed the attorney to be that person’s own attorney under Rule 503(a)(7).
Former Constituents. The privilege extends to a communication made while the person was a constituent, notwithstanding that the person has since left the organization, and remains in the organization’s control.
Successors; Dissolution. Where an organization is succeeded, merged, dissolved, or placed under a receiver, control of the privilege passes to the successor or to the person having authority over its affairs. Where no such person exists, the privilege may be asserted by the attorney under Rule 503(c) and shall be sustained unless the court finds that no interest of the former organization remains to be protected.
The Government as Client. Where the client is the State, a county, a municipality, or an agency or department of any of them, the client is the entity and the privilege is controlled by the officer having authority over the matter, or by the Attorney General or the Solicitor General where the representation is theirs. A government attorney does not by reason of office represent an officer or employee in that person’s individual capacity, and no privilege arises in favor of such a person from a communication with a government attorney concerning the person’s conduct in office, unless the person separately retained the attorney and the attorney so understood.
Joint Representation; Common Interest.
Joint Clients. Where two or more clients retain or consult an attorney in common upon a matter of common interest, communications between any of them and the attorney upon that matter are privileged as against a person outside the joint representation, and each client may assert the privilege against that person. The waiver of the privilege as against a person outside the joint representation requires the consent of every joint client, and no one of them may waive it for the others.
No Privilege Between Joint Clients. As between the joint clients themselves, in an action between or among any of them, there is no privilege as to a communication relevant to the matter of common interest, as Rule 503(g)(4) provides.
Duty to Warn. An attorney undertaking a joint representation shall inform each client, at the outset, that communications upon the common matter are not confidential as between them and may be disclosed in a later action between them. The absence of such a warning does not create a privilege between the joint clients.
Joint Defense and Common Interest Arrangements. Communications among separately represented persons and their attorneys are within Rule 503(b)(3) where the persons share a common legal interest in a pending or reasonably anticipated proceeding, the communication is made in furtherance of that common interest, and the persons intend the communication to remain confidential. The arrangement need not be in writing, but the person asserting the privilege bears the burden of establishing each element under Rule 501(h), and the court may require proof of the arrangement, of its date, and of the participants by username.
Waiver in a Common Interest Arrangement. A participant in a common interest arrangement may waive the privilege as to that participant’s own communications, but not as to the communications of another participant. The withdrawal of a participant, or the emergence of a conflict between participants, does not destroy the privilege as to communications already made.
Crime-Fraud Exception; Procedure.
Threshold Showing. A party invoking the exception stated in Rule 503(g)(1) shall make a showing, upon evidence that is not itself privileged, sufficient to support a good-faith belief by a reasonable person that in camera review of the communications may reveal evidence establishing the exception. Evidence obtained in violation of a privilege shall not be used to make the showing.
In Camera Review. Upon that showing the court may examine the communications in camera under Rule 501(i). The court shall confine the examination to the communications identified in the showing, and may examine a sample where the body of material is large.
Determination. After the examination, the exception applies only where the court finds, by a preponderance of the evidence, that the services of the attorney were sought or obtained to commit or to plan to commit what the client knew or reasonably should have known was a crime or fraud, and that the communication was made in furtherance of that purpose.
The Attorney’s Knowledge Is Immaterial. The exception applies whether or not the attorney knew of the client’s purpose, and whether or not the crime or fraud was accomplished.
Scope. The exception removes the privilege only from communications made in furtherance of the crime or fraud. It does not remove the privilege from communications upon the same relationship that were not so made, and it does not remove the protection of Rule 504(c) from the attorney’s own mental impressions except so far as the attorney participated in the crime or fraud.
Order. The court shall state its findings upon the record and shall identify, by the description required by Rule 501(g)(3), each communication as to which the exception is found to apply.
Exceptions. The attorney-client privilege does not apply to the following:
Furtherance of Crime or Fraud. If the services of the attorney were sought or obtained to commit or to plan to commit what the client knew or reasonably should have known was a crime or fraud;
Breach of Duty or Obligation. As to a communication relevant to an issue of breach of duty between an attorney and client;
Document Attested by an Attorney. As to a communication relevant to an issue concerning an attested document to which the attorney is an attesting witness; or
Joint Clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any one of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients.
Matters Not Within the Privilege. The privilege does not extend to:
the fact that a consultation or a representation occurred, its date, and its general nature;
the identity of the client, the username of the client’s account, and the terms upon which the attorney was retained, including the fee and the person paying it, unless disclosure of any of these would in the circumstances reveal a confidential communication;
a fact known to the client independently of the communication, which the client may be required to disclose although the client also communicated it to the attorney;
a document that was not privileged in the client’s hands and does not become privileged by being delivered to the attorney;
a physical or real item of evidence delivered to the attorney, which the attorney shall not conceal or alter and shall deliver to the court or to the authority entitled to it, the manner of the attorney’s receipt of the item remaining privileged; and
a communication made in the presence of, or in a channel readable by, a person outside the privilege, which is not confidential within Rule 503(a)(5); the fact that the operator of a platform is technically able to access a message does not make the message non-confidential.
Duration. The privilege survives the termination of the representation, the death of a natural client, and the dissolution of an organizational client, subject to Rule 503(d)(5) and to waiver under Rule 509.
Inadvertent Production; Return of Privileged Material.
Where privileged material is produced in discovery, the holder may give notice of the claim and its basis, and the recipient shall thereupon proceed as Rid. R. Civ. P. 19(6)(b) requires: promptly return, sequester, or destroy the material and every copy of it, including a copy stored on a trusted file hosting service or posted in the proceeding communications; refrain from using or disclosing it until the claim is resolved; take reasonable steps to retrieve it where it was disclosed before notice; and present the material to the court, if at all, in the manner the presiding judge directs and not by tendering it to the electronic filing system.
The producing party shall preserve the material until the claim is resolved. The court shall determine whether the disclosure was inadvertent, whether the holder took reasonable steps to prevent it, and whether the holder promptly took reasonable steps to rectify it. Rule 509(e) governs the effect of the disclosure upon the privilege.
Where privileged material has been transmitted to the electronic filing system and accepted, it cannot be returned, removed, sealed, redacted, or withdrawn, and no order shall so direct. The court may proceed under Rule 501(j)(4).
Notice under this subdivision shall be given by direct communication to the recipient and shall not itself be filed, where filing would disclose the matter claimed to be privileged.