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Legal privilege, also known as the attorney-client privilege, is limited to communications between attorney and client made in anticipation of litigation. Both of these conditions, communication and anticipation of litigation, must be met if a document is to be privileged. While the legal basis for privilege is different in criminal law and civil law, the idea of communication is much the same.

This example from criminal law will help illustrate the nature of a communication. One of the statutory created privileges in criminal law is the protection of communications between husband and wife. This privilege is intended to preserve domestic relations and prevents a spouse from testifying about things that person was told by the other spouse. Because of the courts' reluctance to allow criminals to go free, there has been considerable litigation over what constitutes a communication. For instance, if a wife is told by her husband that he robbed a liquor store, the prosecutor may not ask her about the robbery. However, if the wife actually sees the robbery of the liquor store, the prosecutor may ask her what she saw. This illustrates the nature of a communication: it must pass directly from one party to the other, and it must pass intentionally. It may be written, spoken, signed, or otherwise communicated. It may not involve the actual witnessing of the illegal event.

The threat of litigation need only be potential, not imminent. For example, a severe medication reaction would carry the potential of litigation. An investigation of a medication error could satisfy the criterion of anticipation of litigation. The communication would occur when the results of the investigation were passed on to the hospital's attorney. Upjohn Co. v. United States addressed the extent to which the attorney must be involved in the investigation. If the attorney directs the investigation, the information that is passed on to the attorney would be privileged. The problem arises when the client directs the investigation. Since anticipating that are client-initiated can meet the test of anticipation of litigation.

A second problem with client-initiated investigation is the timing of the communication. An investigation that is not passed on to counsel until litigation materializes may be denied protection. This flows from the intent of allowing attorney-client communications to be privileged: to encourage compliance with the laws. If the results of an investigation are not passed on to counsel before litigation materializes, the client will not be encouraged to comply with the laws. Thus client-initiated investigations have difficulty in passing the two tests necessary for the attorney-client privilege to exist.

Before discussing ways to overcome the problem, it will be useful to discuss another protective doctrine, the attorney workproduct doctrine. Attorney workproduct is the work that an attorney performs, other than communication with the client. Notes that the attorney prepares from a client interview would be related to the client communication and would be protected by the attorney-client privilege. An independent investigation that the attorney carries out for the client would not be a communication, but would be workproduct. The key distinction involves whether the document in question contains information obtained from the client. The reason for making this distinction is that information protected by the attorney-client privilege is (almost) never available to discovery. Attorney workproduct is available, however, if the opposing party can show that justice would be denied if the workproduct was unavailable. For example, if an attorney made detailed summaries of important documents that then disappeared, the opposing counsel would be denied information about the contents of the documents if the workproduct was not available. In practice, the distinction between attorney workproduct and attorney-client communications is seldom made, judges tending to protect both equally.

Both doctrines depend upon the involvement of an independent attorney. In order to satisfy this requirement, most corporate legal departments are completely separated from the remainder of the corporate structure. The chief counsel reports directly to the chairman of the board or to another senior officer. The chief counsel in effect runs a small law firm. In smaller companies with only one or two attorneys it is more difficult to maintain this independent structure. Most small companies deal with the problem by sending their work to an outside law firm. While this can be quite expensive, the protection of corporate information is sufficiently important to merit the expenditure.

The large hospital is unique in the amount of sensitive information that it generates per dollar of revenue. Handling all of this information with outside counsel would be logistically difficult, as well as extremely expensive. Thus, most large hospitals hire in-house counsel to manage their sensitive information. The problems arise when the counsel is treated as an administrator, or if there are too many layers of administrative personnel between the attorney and the persons who generate sensitive information. When the attorney acts as an administrator, the activities are neither attorney workproduct nor attorney-client communications. For example, assume that one of the duties of the attorney is to act as an intermediary between the patient and the physician, attempting to defuse the situation and prevent litigation. As part of this process, the attorney prepares a report for the hospital's medical staff committee. This report would not be an attorney-client communication because neither the patient nor the physician is a client. It would also not be attorney workproduct, because the attorney would be acting as an administrator.

The most serious problem for the administrator/attorney arises in the inadvertent witnessing of an adverse incident. Just as the liquor store bandit's wife must testify if she witnesses the crime, an attorney who becomes a fact witness cannot avoid testifying in a lawsuit. This can occur by observing a negligent act or by participating in a negligently conducted review process. The attorney may advise a review committee on the due process aspects of its work; but if the attorney takes part in the review process, the attorney may not protect communications from patients, physicians, and other nonclients. In the same way, an attorney who routinely inspects equipment such as anesthesia machines could be called as a witness to the condition of the equipment.

The problem of too many administrative levels between the attorney and the person generating the sensitive information usually involves a nonattorney administrator who decides what information is passed on to the attorney. This is often a nonattorney "risk manager" who sends only "important" incident reports to the attorney. The problem is that the incident reports not sent to the attorney will be discoverable. The attorney cannot delegate legal decision making to the risk manager, nor can work involving the judgment of the risk manager be considered attorney workproduct.

Thus far, attorney independence and the discoverability of records have not been issues in medical malpractice litigation. Interest in these issues has been traditionally restricted to corporate law litigations, such as tax and securities cases. Institutional health care providers must be aware of their existence, however, because of the trend to sue hospitals for breach of their corporate duties. Confidentiality could become critical if the hospital were faced by a class action suit over the performance of a specialty surgery service. This type of litigation would raise the fine points of attorney independence and privilege heretofore reserved for more traditional corporations.

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