Somewhat remarkably, I am not the only lawyer who writes about evidentiary privileges. I maintain a resources page listing influential treatises, newsletters, and articles. Some of these same authors, along with new ones, published articles in 2022 ranging from the rarely litigated states-secrets privilege to a piece advocating for a privilege for discussions held in the presence of Alexa—yes, that Alexa. I’ll briefly identify and summarize these important articles below, and I commend them to your reading list.
Functional Equivalent Doctrine
The terrific Louisville Law Professor and prolific privilege scholar Grace Giesel has again published a must-read law review article on the attorney-client privilege. Recognizing that the attorney-client privilege generally protects communications between a company’s lawyer and its employee-representatives, Professor Giesel notes that courts have struggled with a rational analytical framework for applying the privilege to a company’s non-employee representatives—consultants. Most courts apply the privilege to those individuals who operate as a “functional equivalent” of an employee, but the professor challenges the factors that courts consider to make this decision, particularly in a post-pandemic world, and proposes a different analysis. Read the article, available here, to see that analysis—it’s worth your time.
Healthcare Consultants and Privilege
Three Foley & Lardner lawyers published a nice article on how to handle privilege issues when healthcare clients engage third-party consultants, such as statisticians, coding experts, and clinical specialists. After identifying several issues, the authors raise the question how “can the work of a non-lawyer consultant fall under the protection of either attorney-client privilege or work product?” They discuss how the Kovel doctrine, which I explained in Deck the Halls with Boughs of Kovel, and address several points “that an attorney and health care client should keep in mind.” You may access the article on Westlaw at 24 No. 5 J. Health Care Compliance 17.
Common Interest Doctrine
Anyone who has attended one of my privilege presentations has likely heard my discussion on courts’ completely inconsistent and incongruent application of the common-interest doctrine. Cody Michael Austin apparently agrees, because his article published in the Mississippi Law Journal states that “there are many variations of the doctrine with little-to-no consistency across jurisdictions.” While I may quibble with the author’s identifying the concept as a “privilege” and “an extension of the attorney-client privilege”—it’s a non-waiver doctrine—he does a good job of reviewing the history of the doctrine’s evolution and proposing a new model doctrine to bring some uniformity in this non-uniform area. Read the article here.
Lawyers published two articles discussing the federal mediation privilege, with both advocating for some consistency in application. Kate Myers of Phoenix firm Christian Dichter & Sluga, home of super lawyer Gena Sluga, published an article comparing mediation privileges under federal law and state law, noting that “they vary widely in their definition and application.” Kate offers a few takeaways, which you may read here.
Tyler Layne of Nashville’s Waller Lansden firm authored a piece in the American Bankruptcy Institute Journal discussing how bankruptcy courts’ local rules, combined with inconsistent recognition of a common-law mediation privilege, can make it difficult for mediation parties to know what will remain confidential and what will not. You may access the article on Westlaw at 41-MAY Am. Bankr. Inst. J. 42.
Privilege Application in Transactions
Alicia F. Castro published a nice article in Corporate Counsel Review discussing how to “thread the needle” between disclosures and the attorney-client privilege in merger-and-acquisition transactions. She provides an appropriate overview of the privilege and compares the privilege elements to disclosure considerations that arise in the M&A area. As if that isn’t enough, she weaves in a discussion of pertinent ethical considerations. You may access the article on Westlaw at 41 Corp. Couns. Rev. 1.
Lawyers Chip Leyens and Natalie Maples published an interesting article discussing whether and how the attorney-client privilege applies in real-estate transactions, including in such practical situations where the attorney, client, and real-estate broker participate in a conversation. You may purchase the article at this site or access it on Westlaw at 68 No.2 PRACLAW 13.
The U.S. Supreme Court issued two opinions in 2022 dealing with the state-secrets privilege, which protects from disclosure governmental communications that implicate national security concerns, a phenomenon that is “remarkable.” Texas Law Professor Robert Chesney published an article in Harvard Law Review providing a history of the state-secrets privilege and discussing how the two opinions bolster the privilege’s application. Read this thorough article here.
Alexa, Assistants, and Privilege
Did you know that Alexa, Siri, and other so-called assistants can listen, record, and do who-knows-what with your conversations? Scary. Lauren Chlouber Howell discusses these issues in her Comment, Alexa Hears with Her Little Ears—But Does She Have a Privilege?. Ms. Howell ultimately advocates for recognition of evidentiary privilege to protect those eavesdropped conversations. Do you agree? Read the article here and decide.
Guardians Ad Litem and Privilege
Courts routinely appoint guardians ad litem for minors, but not to serve them as a lawyer but rather to represent their best interests. Lawyer Jacqueline M. Valdespino and family law consultant Laura Morgan note in their article that a guardian ad litem is not an attorney per se but an investigator and reporter. Their article discusses confidentiality issues that arise in this relationship, including the degree to which the guardian ad litem holds the child’s privilege and whether the guardian ad litem can pierce the privilege of the parties. You may read the article here.
Privilege in the Tax Context
Lawyers from Skadden and Ropes & Gray published an article discussing applicable privileges and the work-product doctrine in the tax context, including waiver issues and application of the crime-fraud exception. This article is particularly pertinent given the upcoming Supreme Court opinion on privilege protection for dual-purpose tax-related communications. You may purchase the article at the ALI page or access it on Westlaw at 36 No. 3 Prac. Tax Law. 8.
Restorative justice programs, generally speaking, offer an alternative to criminal punishment through use of a facilitator that, similar to a mediator, oversees meetings and discussions between the criminal defendant and the victim. As one can imagine, comments from the participants could be used in subsequent criminal or civil proceedings, so the question arises whether an evidentiary privilege should protect restorative justice discussions. Retired Judge Stuart Katz and Patrick Keenan-Devlin published an article in the Illinois Bar Journal explaining a new statutory privilege for restorative-justice communications—a statute written by the judge himself. You may read it here.