A potential client in her early thirties comes in with her parents for an initial consultation. She recently had a stroke and wants to discuss a possible medical malpractice action. You meet with the client and her parents and record part of the conversation. Will that recording be discoverable in the ensuing litigation? According to the Colorado Supreme Court, the answer may be “yes.”
In a case involving these facts, the trial court concluded the plaintiff’s capacity was not diminished such that her parents’ presence was necessary to assist in her legal representation. The court ruled, therefore, that the attorney-client privilege did not protect the lawyer’s recording and granted a motion to compel its production. In a motion for reconsideration, the plaintiff attempted to raise several new arguments—including that the recording was protected under the work-product doctrine. The trial court declined to consider the new arguments and denied the motion.
Court Applied Objective Standard to Determine Necessity
The Colorado Supreme Court found that the trial court did not abuse its discretion on either issue. The supreme court explained that the presence of a third party during attorney-client communications generally destroys any claim of privilege because the communication is not considered confidential. To preserve the privilege in such situations, (1) the client must have a reasonable expectation of confidentiality and (2) the third party’s presence must be necessary to facilitate the communication.
The trial court had looked at the plaintiff’s own social media posts prior to the consultation where she stated her symptoms had disappeared and, ultimately, concluded that the plaintiff’s parents’ presence during the consultation destroyed any privilege that would have otherwise attached. On appeal, the supreme court rejected the argument that the lawyer’s subjective reasonable belief should determine whether the third party’s presence was “necessary” and, instead, applied an objective standard. Because these findings were “amply supported by the evidence in the record,” the supreme court found that the trial court did not abuse its discretion.
The supreme court also noted “the record reveals no effort by [the plaintiff’s counsel] to determine before conferring with [the plaintiff] and her parents whether [the plaintiff’s] stroke caused any cognitive deficiencies such that her parents’ presence was necessary to facilitate the consultation.”
Dissent Questioned Lack of Evidentiary Hearing
The dissent argued the trial court erred by not holding an evidentiary hearing. Some ABA Section of Litigation leaders agree. While most lawyers have heard the adage about hard cases making bad law, “this is an easy case that made bad law,” says Ronald C. Minkoff, New York, NY, cochair of the Attorneys’ Liability Subcommittee of the Section of Litigation’s Professional Liability Litigation Committee. One astonishing aspect of the opinion is the court’s determination without an evidentiary hearing that someone with a recent disabling brain injury was competent to deal with a lawyer on her own, Minkoff explains. “If we’re going to have a rule that allows you to have somebody there to assist you in communicating with a lawyer, this is one of the classic situations,” he adds.
On issues as material as confidentiality and privilege, “the court should, at a minimum, go through an evidentiary hearing and give opposing counsel the opportunity to put on witnesses and evidence that this is work product or that the client did not have the physical or mental stamina to convey everything to the attorney,” agrees Alexander C. Wharton, Memphis, TN, cochair of the Section’s Minority Trial Lawyer Committee. “Without a hearing, I don’t know how the trial judge made this call. How did he assess the credibility of the witnesses?” questions P. John Brady, Kansas City, MO, cochair of the Section’s Health Law Litigation Committee.
On the other hand, the plaintiff’s own social media posts prior to meeting with counsel “asserted that her symptoms had disappeared, and it’s as if nothing happened,” notes Jeffrey R. Boles, Philadelphia, PA, cochair of the Professionalism Subcommittee of the Section’s Ethics & Professionalism Committee. The trial court took those assertions at face value and relied on them “in part because they were so strong,” Boles explains. “I think the strength of those assertions really gave the trial court grounds to rely on them and not conduct a live evidentiary hearing,” he adds.
Availability of Work-Product Doctrine
The concurrence noted “the chilling effect” the decision might have on “attorneys or parties who legitimately perceive a need to have third parties present at an initial consultation.” The concurrence also observed that the work-product doctrine is “the most logical refuge for parties on facts like these,” but the plaintiff invoked it too late.
Brady agrees that the way around the waiver of the privilege in this case was to “take the position that it was work product.” The attorney could argue he was meeting with witnesses (i.e., the parents), and defense counsel likely could not show a substantial need to discover the recording since they had the opportunity to depose the parents, he explains. This decision “really comes down to bad lawyering,” Brady says, noting the “plaintiff’s counsel did not object during the parents’ depositions on the basis of attorney-client privilege and/or work-product doctrine.”
In Wharton’s view, this was clearly a case where the work-product doctrine applied even if it was not asserted. Wharton finds it “extremely concerning” that the court ordered the recording to be produced without even hearing argument on the work-product doctrine. “Work product has to be protected at all costs unless it is clearly waived,” he adds.
The only way to ensure this type of waiver does not occur is to require that no one other than the client be present in any meeting with counsel, advises Wharton. But practically speaking, that can be problematic. Sometimes when you want a first-time client to be open and honest, they need a familiar face in the meeting, Wharton observes.
In jurisdictions where a third party’s presence must be necessary for the communication to avoid waiving privilege, attorneys must make a “substantive effort to determine whether that third party is in fact necessary,” cautions Boles. If there are any third parties present during a meeting, “there should be a red flag in the attorney’s mind with a prompt that before any substantive communications ensue, the attorney should do some fact finding and demonstrate if the third party’s presence is necessary or if some other exception applies,” Boles says.
“If there is any degree of uncertainty in the attorney’s mind as to whether the third party’s presence is in fact necessary under an objective standard, the attorney should consider whether the work-product doctrine would apply as an alternative to the attorney-client privilege,” Boles suggests. The availability of that second avenue lessens the concern about a chilling effect noted in the concurrence, he adds.
Finally, “never record a meeting,” advises Minkoff. “Take notes, use your memory,” but do not make a recording, “especially when you know there are third parties in the room and somebody might question that later,” he adds.
C. Thea Pitzen is a contributing editor for Litigation News.
Hashtags: #lawtwitter, #attorneyclientprivilege, #waiver, #discovery
- Edna S. Epstein, The Attorney-Client Privilege and the Work-Product Doctrine (6th ed. 2017).
- Brian Spahn, “Advice of Counsel: Impact on Attorney-Client Privilege and Waiver,” Corporate Counsel (Dec. 21, 2018).
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