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ARTICLE V. PRIVILEGES

Table of Contents

Article I. General Provisions
Article II. Judicial Notice
Article III. Presumptions
Article IV. Relevancy and Its Limits
Article V. Privileges
Rule 502
Rule 503
Rule 504
Article VI. Witnesses
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Article X. Contents of Writings, Recordings,
and Photographs
Click here to see commentary on Revised Article V Rules.

Revised Rule 50[3]2. [Lawyer] Attorney-Client Privilege [changes highlighted]

(a) Definitions. As used in this rule:

(1) A "client" is a person, public officer, or corporation, association or other organization or entity, either public or private, who is rendered professional legal services by an attorney, or who consults an attorney with a view of obtaining professional legal services [from him].

Click here to see commentary on Revised Article 502(a)(1).

(2) An "attorney" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

Click here to see commentary on Revised Article 502(a)(2).

(3) A "representative of the client" is an agent whose statements would constitute a vicarious admission of the client.

Click here to see commentary on Revised Article 502(a)(3).

[(3)] (4) A "representative of the lawyer" is one employed for the primary purpose of assisting the lawyer in the rendition of professional legal services.

Click here to see commentary on Revised Article 502(a)(4).

(5) A "communication" is any means by which information is transmitted, regardless of format.

Click here to see commentary on Revised Article 502(a)(5).

[(4)] (6) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

Click here to see commentary on Revised Article 502(a)(6).

(b) General rule of privilege. The attorney-client privilege protects communications, not information. A client has a privilege to refuse to disclose and to prevent any other person, from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or the client's representative and client's attorney or the attorney's representative, or (2) between the attorney and the attorney's representative, or (2) by the client or the client's attorney to an attorney representing another in a matter of common interest, (3) between a joint client or the joint client's representative and the attorney or the attorney's representative regarding the subject matter of the joint representation, (4) between representatives of the client or between the client and a representative of the client, or (5) between attorneys representing the client. Communications from the attorney or the attorney's representative to the client or the client's representative are privileged only to the extent that they reveal legal advice or confidential communications from the client.

Click here to see commentary on Revised Article 502(b).

(c) The requirement of confidentiality. Confidentiality is a condition precedent to the creation of the attorney-client privilege and a necessary condition for the continuation of the privilege protection, unless excused under this rule. The loss of confidentiality may be excused when: (1) the communication has been inadvertently disclosed; (2) the communication was seized without client approval; (3) the communication was divulged pursuant to a judicial protective order; (4) the communication was shared among joint clients who share common legal interests and collectively seek legal advice or assistance.

Click here to see commentary on Revised Article 502(c).

(d[c]) Who may claim the privilege. The privilege may be claimed by the client, [his] the client's representative, guardian or conservator, [the personal representative of a deceased client,] or the successor, trustee, or [similar] other representative of a corporation, association, government agency, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. [His] The lawyer's authority to do so is presumed in the absence of evidence to the contrary.

Click here to see commentary on Revised Article 502(d).

(e[d]) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime[, fraud] or intentional tort. [If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit] When the client consults the attorney for the purpose of assisting in the perpetration or perpetuation of what the client knew or reasonably should have known to be a crime or [fraud] intentional tort; or

(2) Breach of fiduciary duty. When a beneficiary, individual or entity, to whom a fiduciary duty was owed, brings an action against the fiduciary, and good cause is shown for the requested discovery; or

(3) Breach of a duty by lawyer or client. As to a communication relevant to an issue of a breach of duty by [the] a lawyer to [his] the client or by the client to [his] the lawyer. Where the breach is asserted by a third party, privileged communications may only be revealed under judicial supervision after the court has determined that the party making the allegations has made a prima facie showing that the breach occurred; or

[(4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or ]

[(2)] (4) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

(5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

Click here to see commentary on Revised Article 502(e).

Revised Rule 502. Attorney-Client Privilege [clean copy]

(a) Definitions. As used in this rule:

(1) A "client" is a person, public officer, or corporation, association or other organization or entity, either public or private, who is rendered professional legal services by an attorney, or who consults an attorney with a view of obtaining professional legal services.

(2) An "attorney" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

(3) A "representative of the client" is an agent whose statements would constitute a vicarious admission of the client.

(4) A "representative of the lawyer" is one employed for the primary purpose of assisting the lawyer in the rendition of professional legal services.

(5) A "communication" is any means by which information is transmitted, regardless of format.

(6) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(b) General rule of privilege. The attorney-client privilege protects communications, not information. A client has a privilege to refuse to disclose and to prevent any other person, from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or the client's representative and client's attorney or the attorney's representative, or (2) between the attorney and the attorney's representative, or (2) by the client or the client's attorney to an attorney representing another in a matter of common interest, (3) between a joint client or the joint client's representative and the attorney or the attorney's representative regarding the subject matter of the joint representation, (4) between representatives of the client or between the client and a representative of the client, or (5) between attorneys representing the client. Communications from the attorney or the attorney's representative to the client or the client's representative are privileged only to the extent that they reveal legal advice or confidential communications from the client.

(c) The requirement of confidentiality. Confidentiality is a condition precedent to the creation of the attorney-client privilege and a necessary condition for the continuation of the privilege protection, unless excused under this rule. The loss of confidentiality may be excused when: (1) the communication has been inadvertently disclosed; (2) the communication was seized without client approval; (3) the communication was divulged pursuant to a judicial protective order; (4) the communication was shared among joint clients who share common legal interests and collectively seek legal advice or assistance.

(d) Who may claim the privilege. The privilege may be claimed by the client, the client's representative, guardian or conservator, or the successor, trustee, or other representative of a corporation, association, government agency, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. The lawyer's authority to do so is presumed in the absence of evidence to the contrary.

(e) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or intentional tort. When the client consults the attorney for the purpose of assisting in the perpetration or perpetuation of what the client knew or reasonably should have known to be a crime or [fraud] intentional tort; or

(2) Breach of fiduciary duty. When a beneficiary, individual or entity, to whom a fiduciary duty was owed, brings an action against the fiduciary, and good cause is shown for the requested discovery; or

(3) Breach of a duty by lawyer or client. As to a communication relevant to an issue of a breach of duty by a lawyer to the client or by the client to the lawyer. Where the breach is asserted by a third party, privileged communications may only be revealed under judicial supervision after the court has determined that the party making the allegations has made a prima facie showing that the breach occurred; or

(4) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

(5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

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