(a) Definitions. As used in this section, the following words shall have the following meanings:
(1) A “client” is a person, public officer, or corporation, association, or other entity, either public or private, who is rendered professional legal services by an attorney, or who consults an attorney with a view to obtaining professional legal services.
(2) A “representative of the client” may include the client’s agent or employee.
(3) An “attorney” is a person who is authorized to practice law.
(4) A “representative of the attorney” is one used by the attorney to assist the attorney in providing professional legal services.
(5) A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is made to obtain or provide professional legal services to the client, and those reasonably necessary for the transmission of the communication.
(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent others from disclosing confidential communications made for the purpose of obtaining or providing professional legal services to the client as follows:
(1) between the client or the client’s representative and the client’s attorney or the attorney’s representative,
(2) between the client’s attorney and the attorney’s representative,
(3) between those involved in a joint defense,
(4) between representatives of the client or between the client and a representative of the client, or
(5) among attorneys and their representatives representing the same client.
(c) Who May Claim the Privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization whether or not in existence at the time the privilege is claimed. The attorney or the attorney’s representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.
(d) Exceptions. The attorney-client privilege does not apply to the following:
(1) Furtherance of Crime or Fraud. If the services of the attorney were sought or obtained to commit or to plan to commit what the client knew or reasonably should have known was a crime or fraud;
(2) 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;
(3) Breach of Duty or Obligation. As to a communication relevant to an issue of breach of duty between an attorney and client;
(4) Document Attested by an Attorney. As to a communication relevant to an issue concerning an attested document to which the attorney is an attesting witness;
(5) Joint Clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any one of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients; or
(6) Public Officer or Agency. [Privilege not recognized]
Introduction. The Supreme Judicial Court has defined the attorney-client privilege as follows:
“The classic formulation of the attorney-client privilege . . . is found in 8 J. Wigmore, Evidence § 2292 (McNaughton rev. ed. 1961): (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. The purpose of the privilege is to enable clients to make full disclosure to legal counsel of all relevant facts . . . so that counsel may render fully informed legal advice with the goal of promot[ing] broader public interests in the observance of law and administration of justice.” (Quotations and citations omitted.)
Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 303, 901 N.E.2d 1185, 1194 (2009).
“The existence of the privilege and the applicability of any exception to the privilege is a question of fact for the judge. The burden of proving that the attorney-client privilege applies to a communication rests on the party asserting the privilege. This burden extends not only to a showing of the existence of the attorney-client relationship but to all other elements involved in the determination of the existence of the privilege, including (1) the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived.” (Citations omitted.)
Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 421, 681 N.E.2d 838, 840 (1997). This privilege is not self-executing. See District Attorney for Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633–634, 481 N.E.2d 1128, 1131 (1985).
Subsection (a)(1). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(1), reflects Massachusetts practice. The term “client” includes more than simply natural persons. See Mass. R. Prof. C. 1.13 (1998). See also Matter of a Grand Jury Investigation, 437 Mass. 340, 351–352, 772 N.E.2d 9, 17–18 (2002); Bays v. Theran, 418 Mass. 685, 690, 639 N.E.2d 720, 723 (1994).
The attorney-client privilege survives the death of the client. Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 483, 562 N.E.2d 69, 70 (1990).
Subsection (a)(2). This subsection is derived from Ellingsgard v. Silver, 352 Mass. 34, 40, 223 N.E.2d 813, 817 (1967) (“The attorney-client privilege may extend to communications from the client’s agent or employee to the attorney.”). The Supreme Judicial Court has yet to determine the scope of the privilege when the client is an organization such as a corporation. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep’t of Mental Retardation, 424 Mass. 430, 457 n.26, 677 N.E.2d 127, 145 n.26 (1997) (attorney-client privilege not automatically extended to all employees of corporation who communicate with corporation’s attorney). Cf. Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347, 357, 764 N.E.2d 825, 833 (2002) (a lawyer is barred from ex parte contact with employees of a corporation, under the rule of professional responsibility prohibiting a lawyer from communicating with a represented party in the absence of that party’s counsel, only as to employees who exercise managerial responsibility with regard to the subject of pending litigation, those alleged to have committed wrongful actions at issue in the litigation, and employees with authority to make decisions about the course of litigation or having management authority sufficient to speak for and bind the corporation).
Subsection (a)(3). This subsection is derived from Barnes v. Harris, 61 Mass. 576, 576–577 (1851).
Subsection (a)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(4), reflects Massachusetts practice. In Foster v. Hall, 29 Mass. 89 (1831), the court explained that the attorney-client privilege applied to communications to members of the legal profession, and also to those who “facilitate the communication between attorney and client, as interpreters, agents, and attorneys’ clerks” (citations omitted). Id. at 94.
Subsection (a)(5). This subsection is derived from Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 901 N.E.2d 1185 (2009), where the Supreme Judicial Court stated that “information contained within a communication need not itself be confidential for the communication to be deemed privileged; rather the communication must be made in confidence—that is, with the expectation that the communication will not be divulged.” Id. at 305, 901 N.E.2d at 1196. The communication of an otherwise privileged matter to an accountant for the purpose of obtaining legal advice from the lawyer does not destroy the privilege. Id. at 306–307, 901 N.E.2d at 1196–1197, citing Foster v. Hall, 29 Mass. 89, 92 (1831), and Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 606, 616, 870 N.E.2d 1105, 1111 (2007). However, in order for the derivative privilege to apply to the communication to an accountant, it must be necessary for effective consultation between client and attorney and not merely useful and convenient. Id. at 308, 901 N.E.2d at 1198 (“We agree with the majority of courts that the Kovel [Kovel v. United States, 296 F.2d 918 (2d Cir. 1961)] doctrine applies only when the accountant’s role is to clarify or facilitate communications between attorney and client.”). In Comcast Corp., the Supreme Judicial Court held that an attorney’s communications with an accountant were not privileged because they were not intended to help the lawyer understand the client’s communications to him, but rather to give the lawyer advice about Massachusetts tax law, even though such advice would be helpful to the lawyer in advising his client. Id. at 308–309, 901 N.E.2d at 1198. See also Peters v. Wallach, 366 Mass. 622, 627, 321 N.E.2d 806, 809 (1975) (“Communications between an attorney and his client are not privileged, though made privately, if it is understood that the information communicated is to be conveyed to others. The client’s grant of authority to settle must be communicated to the other party to the settlement and is thus not confidential.” [Citations omitted.]).
Subsection (b). Subsections (b)(1), (2), (4), and (5) are derived from Proposed Mass. R. Evid. 502(b), which was cited with approval in Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 115, 676 N.E.2d 436, 440 (1997) (“The attorney-client privilege applies only when the client’s communication was for the purpose of facilitating the rendition of legal services.”). Subsection (b)(3) is derived from Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 614–617, 870 N.E.2d 1105, 1110–1112 (2007), where the Supreme Judicial Court recognized the “common interest doctrine” and adopted the principle of the Restatement (Third) of the Law Governing Lawyers § 76(1) (2000), which states as follows:
“If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged . . . that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication.”
This principle expresses the component of the doctrine known as “joint defense agreements,” “joint defense privilege,” or “joint prosecution privilege.” See also Proposed Mass. R. Evid. 502(b)(3). In Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. at 618, 870 N.E.2d at 1113, the Supreme Judicial Court explained that the common-interest doctrine depends on communications that are protected by the attorney-client privilege and is simply an exception to the waiver of the privilege. Thus, there is no requirement of a writing. Id. at 618, 870 N.E.2d at 1113. The court also explained that the legal interests of the parties do not have to be identical in order for the common-interest doctrine to apply. Parties will be deemed to have a common interest when they “share a sufficiently similar interest and attempt to promote that interest by sharing a privileged communication” (quotation and citation omitted). Id. at 619, 870 N.E.2d at 1113. Finally, the Supreme Judicial Court also noted that Section 76(2) of the Restatement is consistent with Massachusetts law. Id. at 614 n.4, 870 N.E.2d at 1110 n.4. Section 76(2) states that “[u]nless the clients have agreed otherwise, a communication described in Subsection (1) is not privileged as between clients described in Subsection (1) in a subsequent adverse proceeding between them.” Id., quoting Restatement (Third) of the Law Governing Lawyers § 76(2) (2000).
Subsection (c). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(c), reflects Massachusetts practice. See District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 172–173, 628 N.E.2d 24, 26 (1994).
Subsection (d)(1). This subsection is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(1), which the Supreme Judicial Court described as an adequate definition of the crime-fraud exception to the attorney-client privilege. Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 112, 676 N.E.2d 436, 439 (1997). See also Mass. R. Prof. C. 1.6(b)(1) (1998). “Th[e] exception applies only if the client or prospective client seeks advice or assistance in furtherance of criminal conduct.” Purcell v. District Attorney for the Suffolk Dist., 424 Mass. at 115, 676 N.E.2d at 441. See Matter of a Grand Jury Investigation, 453 Mass. 453, 459, 902 N.E.2d 929, 934 (2009) (“a client’s communications to his lawyer threatening harm are privileged unless the crime-fraud exception applies”).
Subsection (d)(2). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(2), reflects Massachusetts practice. See Phillips v. Chase, 201 Mass. 444, 449, 87 N.E. 755, 757–758 (1909).
Subsection (d)(3). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(3), reflects Massachusetts practice. See Mass. R. Prof. C. 1.6(b) (1998); GTE Prods. Corp. v. Stewart, 421 Mass. 22, 32, 653 N.E.2d 161, 167–168 (1995) (there are limits to the extent to which in-house counsel may disclose client confidences in pursuing a claim of wrongful discharge); Commonwealth v. Brito, 390 Mass. 112, 119, 453 N.E.2d 1217, 1221 (1983) (“[T]rial counsel’s obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel.”).
Subsection (d)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(4), reflects Massachusetts practice. See Foster v. Hall, 29 Mass. 89, 98–99 (1831).
Subsection (d)(5). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(5), reflects Massachusetts practice. See Beacon Oil Co. v. Perelis, 263 Mass. 288, 293, 160 N.E. 892, 894 (1928); Thompson v. Cashman, 181 Mass. 36, 37, 62 N.E. 976, 977 (1902).
Subsection (d)(6). In Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 450, 870 N.E.2d 33, 38 (2007), the Supreme Judicial Court held that “confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.” Thus, the Supreme Judicial Court rejected the proposed limitation on the attorney-client privilege for public employees and governmental entities found in Proposed Mass. R. Evid. 502(d)(6). Id. at 452 n.12, 870 N.E.2d at 40 n.12. Additionally, the Supreme Judicial Court held that its decision in General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801–806, 711 N.E.2d 589, 592–595 (1999), which states that under the Massachusetts public records statute, G. L. c. 66, § 10, documents held by a State agency are not protected from disclosure under the attorney work-product doctrine, but rather enjoy the more limited protection of the so-called “deliberative process” exemption found in G. L. c. 4, § 7, Twenty-sixth (d), did not limit the applicability of the attorney-client privilege as to written communications between government officials and entities and their counsel.
“With the attorney-client privilege, the principal focus is on encouraging the client to communicate freely with the attorney; with work-product, it is on encouraging careful and thorough preparation by the attorney. As a result, there are differences in the scope of the protection. For example, the privilege extends only to client communications, while work product encompasses much that has its source outside client communications. At the same time, the privilege extends to client-attorney communications whenever any sort of legal services are being provided, but the work-product protection is limited to preparations for litigation.”
Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. at 456, 870 N.E.2d at 43, quoting E.S. Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 477 (4th ed. 2001).
Work-Product Doctrine. The work-product doctrine is not an evidentiary privilege, but rather a discovery rule which
“protects a client’s nonlawyer representatives, protecting from discovery documents prepared by a party’s representative ‘in anticipation of litigation.’ The protection is qualified, and can be overcome if the party seeking discovery demonstrates ‘substantial need of the materials’ and that it is ‘unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ There is a further limitation: the court is to ‘protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.’ This so-called ‘opinion’ work product is afforded greater protection than ‘fact’ work product.”
Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 314, 901 N.E.2d 1185, 1202 (2009), quoting Mass. R. Civ. P. 26(b)(3).
“The work product doctrine, drawn from the well-known case of Hickman v. Taylor, 329 U.S. 495 (1947), is intended to enhance the vitality of an adversary system of litigation by insulating counsel’s work from intrusions, inferences, or borrowings by other parties as he prepares for the contest. Originally developed in connection with civil litigation, the doctrine has been extended to criminal cases. United States v. Nobles, 422 U.S. 225, 238 (1974).” (Citations omitted.)
Ward v. Peabody, 380 Mass. 805, 817, 405 N.E.2d 973, 980 (1980). It is codified in Massachusetts and applicable in both civil and criminal cases. See Mass. R. Civ. P. 26(b)(3); Mass. R. Crim. P. 14(a)(5). The protections afforded by the work-product doctrine can be waived by the attorney. Adoption of Sherry, 435 Mass. 331, 336, 757 N.E.2d 1097, 1102 (2001). See also Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 423, 681 N.E.2d 838, 841 (1997) (no waiver when disclosure of work-product is due to inadvertence and adequate steps were taken to maintain the confidentiality of the information).
Initially, the burden is on the party asserting the work-product doctrine to demonstrate that the document was prepared in anticipation of litigation. If that burden is met, the burden shifts to the party seeking access to the document to prove that it cannot obtain the substantial equivalent of the document without undue hardship. If the material is opinion work product, the party seeking access to it must make, at a minimum, a “far stronger showing of necessity and unavailability by other means.” Upjohn Co. v. United States, 449 U.S. 383, 402 (1981). See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 315, 901 N.E.2d 1185, 1203 (2009).
In Comcast Corp., the Supreme Judicial Court further explained that the phrase “in anticipation of litigation” has been defined by courts in two different ways: (1) whether the documents “are prepared ‘primarily or exclusively to assist in litigation’—a formulation that would potentially exclude documents containing analysis of expected litigation, if their primary, ultimate, or exclusive purpose is to assist in making the business decision,” and (2) whether the documents “were prepared ‘because of’ existing or expected litigation—a formulation that would include such documents, despite the fact that their purpose is not to ‘assist in’ litigation” (citation omitted). Id. at 316, 901 N.E.2d at 1203. In Comcast Corp., the Supreme Judicial Court adopted the second of these two formulations as the law in Massachusetts:
“The ‘because of’ test ‘appropriately focuses on both what should be eligible for the [r]ule’s protection and what should not.’ Thus, a document is within the scope of the rule if, ‘in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared because of the prospect of litigation’” (citations omitted).
Id. at 316–317, 901 N.E.2d at 1204 (“a litigation analysis prepared so that a party can make an informed business decision is afforded the protections of the work-product doctrine”; additionally, memos prepared for counsel by the accountant that were not protected by the attorney-client privilege also fall within the scope of the opinion work-product doctrine). The formulation of the work-product doctrine in the Federal system may be narrower. See United States v. Textron Inc. & Subsidiaries, 577 F.3d 21 (1st Cir. 2009). See also Christian M. Hoffman & Matthew C. Baltay, Maintaining Client Confidences: Developments at the Supreme Judicial Court and First Circuit in 2009, 53 Boston B.J. 4, 20–23 (Fall 2009).
Opinion work product relating to a different case is nonetheless entitled to work-product protection, although it may require a lesser showing to overcome the work-product rule. McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 198 n.37, 972 N.E.2d 1037, 1051 n.37 (2012).
Waiver. For issues relating to waiver, see Section 523, Waiver of Privilege.