Federal Rule of Evidence 502 provides lawyers with several tools to protect against a waiver of attorney-client privilege or work product immunity. From a risk management perspective, using Federal Rule of Evidence 502(d) nonwaiver orders and Rule 502(e) nonwaiver agreements makes sense for clients, lawyers, and their firms. However, ethical issues surround the use of Federal Rule 502’s nonwaiver tools.
Judges and commentators have suggested, based on statements in the advisory committee note to Federal Rule of Evidence 502, that the rule’s nonwaiver tools provide a vehicle to reduce discovery costs by eliminating the need to review information for privilege before producing it. Those suggestions, however, fail to consider the duty of confidentiality found in Rule 1.6(a) of the Model Rules of Professional Conduct. Model Rule 1.6 was amended in 2012 to add a new subsection (c), which specifically requires “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” See Model Rules of Prof’l Conduct R. 1.6(c) (2012).
This article explains that using Federal Rule of Evidence 502(d) nonwaiver orders and Federal Rule 502(e) nonwaiver agreements to avoid the cost of pre-production screening for privilege may run afoul of Model Rule 1.6’s mandate and could trigger an ethical problem for the attorney who employs that strategy. An attorney always should obtain informed consent from a client before engaging in the type of strategy suggested in the advisory committee note to Federal Rule of Evidence 502.
Read the full article: Reconciling Federal Rule of Evidence 502 with Model Rule 1.6Comments Off