THERE ARE FIVE LEGALLY RECOGNIZED FORMS OF PRIVILEGED RELATIONSHIPS, ALTHOUGH THERE CAN BE VARIANCES DUE TO JURISDICTIONAL ISSUES:
- Attorney / Client
- Clergy / Parishioner
- Health Care Provider / Patient
- Law Enforcement Officer / Confidential Informant
- Newspaper Reporter / Source
In addition, spousal Privilege exists in certain jurisdictions, although limited by a Supreme Court decision in 1980 to include only a spouse taking the witness stand.
At Big Country Investigations we work very closely with many professionals in their respective field. We typically work hand to hand in the trenches with attorneys on most of our cases. Many investigations can start as a civil investigation with discovery of criminal element. And, many criminal investigations have civil repercussions which coordinate the paradigm of having investigative knowledge in both areas.
It amazes us at BCI of how many clients that do not consider an attorney in the early stages of an investigation that we feel could go to criminal and/or civil litigation. At BCI we Protect our Clients! Let me take you a step further. Attorney / Client privilege is the most longstanding and perhaps the most recognized form of privileged communications. Its purpose is to encourage honest and complete communication between a client and his or her attorney and vice versa.
Originally constructed to prevent the attorney from having to testify against the client, the attorney had the privilege. The attorney-client privilege has developed over the years to be a matter of common law. It is important that professional investigators understand the difference between what is privileged communication and what is not. Supreme Court Rule 201(b)(2) recognizes a privilege as to matters in preparation for trial. “Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation’s plans of the party’s attorney”. Privilege means that communication is legally private. The other side is not entitled to know what you are saying (or doing).
Work Product is the term used to describe that which is protected by privilege under the auspices of attorney strategy, theory, notes and communication to and from others. This is not as wide a margin as some investigators may think. The Supreme Court ruling makes it clear that we need to guard our communications to some degree. Black’s definition of Work Product is: “Tangible material or its intangible equivalent in written or oral form that either was prepared by or for a lawyer or prepared for litigation, either planned or in progress.” The Work Product doctrine was born from a 1947 case, Hickman v. Taylor, 329 U.S. 495, 91 I.Ed. 451, 67 S. CT 385, 393, (1947), in which the Court rejected “an attempt, without pur-ported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties.”
Generally speaking, if we are not sure our communication with our attorney and/or client will be considered by the court to be privileged attorney work product, we don’t write it down. Verbal reports to our attorney-client are always the preferred method of communication, unless we are instructed otherwise by the attorney. The attorney’s notes from your verbal reports and discussions Are Not Discoverable.
NOTE: A prosecuting attorney is required to turn over exculpatory information to the defense, but the defense attorney is not required to turn over inculpatory information to the prosecution. A quick E-mail seems to be the route used in today’s world, but we must be careful what we put into E-mails directed to attorney-clients. We cannot assume that because we are communicating with, or even working for, an attorney that what we say or do is going to be safe from a dreaded subpoena. Sounds scary but you will like the next paragraph.
Kovel Privilege: What is it and what does it do for us? In 1961, the US Court of Appeals for the Second Circuit in New York handed down their decision on a pivotal case that defines the application of the attorney-client privilege as it extends to third party consultants. The case was U.S. v Kovel 296 F2nd 918 (2d Cir. 1961). The litigated issue was whether or not communications between a client of a law firm and an accountant hired by the law firm to work on his case, were considered to be privileged communications. The firm, and the accountant, argued that they were. Louis Kovel, an accountant and former IRS agent turned consultant, was hired by Kamerman and Kamerman to work on a case of their client Hoops who was being investigated for tax violations. When Kovel refused to testify in grand jury regarding communications with Hoops he was cited for contempt of court. He spent a year in jail while his case was under appeal. Kovel eventually won and laid the groundwork for third party consultants to communicate with attorney-client without fear of being forced to testify about those communications. But Kovel does not give us carte blanche. It is a common mistake of investigator to assume that anything we say or do is going to be protected under this privilege. As a result of Kovel, the rule of thumb is that the attorney-client privilege Does Extend to a Third Party (Investigator) if the communication is conveyed for the express purpose of obtaining advice or discussing strategy on a case at hand or that is anticipated. To summarize, the courts have furthered the scope of Kovel to protect the attorney work product doctrine and to include communications or materials of third party consultants, if they were “prepared by a party, her agent, attorney or consultant in anticipation of litigation”.
Bottom line is, professional investigators working for an attorney regarding litigation or possible litigation, are considered third party consultants afforded the attorney-client privilege. In another case out of the Southern District of New York, the lower court ruled in Welland v. Trainer that investigator notes, which had been prepared prior to attorney involvement in the case, were not afforded the status of privilege. On the other hand, notes prepared after attorney involvement were considered protected under work product privilege. See No. 00 CIV.0738 (JSM) 2001 U.S. Dist. LEXIS 15556 (S.D.N.Y. Sept 28,2001). Regarding this case an Illinois Investigator recently posted this pertinent comment on the National Association of Legal Investigator listserv: “Decisions like that in Welland highlight the wisdom of involving a lawyer in even the earliest stages of an investigation. Waiting until later can forfeit important protections.
SUMMARY: The Work Product Doctrine casts a wider tent of protection than the attorney-client privilege. Its purpose is to allow an attorney to prepare for a case without fear of the other side knowing the evidence. Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 I112nd 178, 579 NE 2nd 322,329, 161 Ill.Dec. 774 (1991), citing Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct. 385 (1947) Simply put, fair is fair and the other side is not entitled to take undue advantage of another attorney’s production, including work performed by a professional investigator. (Source PI Magazine).
ATTORNEY PRIVILEGE vs. WORK PRODUCT
THERE ARE FIVE LEGALLY RECOGNIZED FORMS OF PRIVILEGED RELATIONSHIPS, ALTHOUGH THERE CAN BE VARIANCES DUE TO JURISDICTIONAL ISSUES:
In addition, spousal Privilege exists in certain jurisdictions, although limited by a Supreme Court decision in 1980 to include only a spouse taking the witness stand.
At Big Country Investigations we work very closely with many professionals in their respective field. We typically work hand to hand in the trenches with attorneys on most of our cases. Many investigations can start as a civil investigation with discovery of criminal element. And, many criminal investigations have civil repercussions which coordinate the paradigm of having investigative knowledge in both areas.
It amazes us at BCI of how many clients that do not consider an attorney in the early stages of an investigation that we feel could go to criminal and/or civil litigation. At BCI we Protect our Clients! Let me take you a step further. Attorney / Client privilege is the most longstanding and perhaps the most recognized form of privileged communications. Its purpose is to encourage honest and complete communication between a client and his or her attorney and vice versa.
Originally constructed to prevent the attorney from having to testify against the client, the attorney had the privilege. The attorney-client privilege has developed over the years to be a matter of common law. It is important that professional investigators understand the difference between what is privileged communication and what is not. Supreme Court Rule 201(b)(2) recognizes a privilege as to matters in preparation for trial. “Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation’s plans of the party’s attorney”. Privilege means that communication is legally private. The other side is not entitled to know what you are saying (or doing).
Work Product is the term used to describe that which is protected by privilege under the auspices of attorney strategy, theory, notes and communication to and from others. This is not as wide a margin as some investigators may think. The Supreme Court ruling makes it clear that we need to guard our communications to some degree. Black’s definition of Work Product is: “Tangible material or its intangible equivalent in written or oral form that either was prepared by or for a lawyer or prepared for litigation, either planned or in progress.” The Work Product doctrine was born from a 1947 case, Hickman v. Taylor, 329 U.S. 495, 91 I.Ed. 451, 67 S. CT 385, 393, (1947), in which the Court rejected “an attempt, without pur-ported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties.”
Generally speaking, if we are not sure our communication with our attorney and/or client will be considered by the court to be privileged attorney work product, we don’t write it down. Verbal reports to our attorney-client are always the preferred method of communication, unless we are instructed otherwise by the attorney. The attorney’s notes from your verbal reports and discussions Are Not Discoverable.
NOTE: A prosecuting attorney is required to turn over exculpatory information to the defense, but the defense attorney is not required to turn over inculpatory information to the prosecution. A quick E-mail seems to be the route used in today’s world, but we must be careful what we put into E-mails directed to attorney-clients. We cannot assume that because we are communicating with, or even working for, an attorney that what we say or do is going to be safe from a dreaded subpoena. Sounds scary but you will like the next paragraph.
Kovel Privilege: What is it and what does it do for us? In 1961, the US Court of Appeals for the Second Circuit in New York handed down their decision on a pivotal case that defines the application of the attorney-client privilege as it extends to third party consultants. The case was U.S. v Kovel 296 F2nd 918 (2d Cir. 1961). The litigated issue was whether or not communications between a client of a law firm and an accountant hired by the law firm to work on his case, were considered to be privileged communications. The firm, and the accountant, argued that they were. Louis Kovel, an accountant and former IRS agent turned consultant, was hired by Kamerman and Kamerman to work on a case of their client Hoops who was being investigated for tax violations. When Kovel refused to testify in grand jury regarding communications with Hoops he was cited for contempt of court. He spent a year in jail while his case was under appeal. Kovel eventually won and laid the groundwork for third party consultants to communicate with attorney-client without fear of being forced to testify about those communications. But Kovel does not give us carte blanche. It is a common mistake of investigator to assume that anything we say or do is going to be protected under this privilege. As a result of Kovel, the rule of thumb is that the attorney-client privilege Does Extend to a Third Party (Investigator) if the communication is conveyed for the express purpose of obtaining advice or discussing strategy on a case at hand or that is anticipated. To summarize, the courts have furthered the scope of Kovel to protect the attorney work product doctrine and to include communications or materials of third party consultants, if they were “prepared by a party, her agent, attorney or consultant in anticipation of litigation”.
Bottom line is, professional investigators working for an attorney regarding litigation or possible litigation, are considered third party consultants afforded the attorney-client privilege. In another case out of the Southern District of New York, the lower court ruled in Welland v. Trainer that investigator notes, which had been prepared prior to attorney involvement in the case, were not afforded the status of privilege. On the other hand, notes prepared after attorney involvement were considered protected under work product privilege. See No. 00 CIV.0738 (JSM) 2001 U.S. Dist. LEXIS 15556 (S.D.N.Y. Sept 28,2001). Regarding this case an Illinois Investigator recently posted this pertinent comment on the National Association of Legal Investigator listserv: “Decisions like that in Welland highlight the wisdom of involving a lawyer in even the earliest stages of an investigation. Waiting until later can forfeit important protections.
SUMMARY: The Work Product Doctrine casts a wider tent of protection than the attorney-client privilege. Its purpose is to allow an attorney to prepare for a case without fear of the other side knowing the evidence. Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 I112nd 178, 579 NE 2nd 322,329, 161 Ill.Dec. 774 (1991), citing Hickman v. Taylor, 329 U.S. 495, 91 L.Ed. 451, 67 S.Ct. 385 (1947) Simply put, fair is fair and the other side is not entitled to take undue advantage of another attorney’s production, including work performed by a professional investigator. (Source PI Magazine).