attorney-client privilege in New Mexico

2026The party “asserting the attorney-client privilege bears the burden of 12 demonstrating that the privilege applies.” Allen v. LeMaster, 2012-NMSC-001, ¶ 38 , 13 267 P.3d 806 . 14 {12} Although the term “professional legal services” is not defined in Rule 11-503, 15 the Court of Appeals, in Bhandari v. Artesia General Hospital, held that the 16 attorney-client privilege “protects communications generated or received by an 17 attorney giving legal advice but does not protect communications derived from an 18 attorney giving business advice or acting in some other capacity.” 2014-NMCA-018 , 19 ¶

2026Because the Padilla Report “neither solicit[s nor] predominantly 11 deliver[s] legal advice,” the attorney-client privilege does not apply. 3 Bhandari, 12 2014-NMCA-018, ¶ 17 (internal quotation marks and citation omitted). 3 Because we find that no part of the Padilla Report is subject to the attorney- client privilege, we do not decide whether a public record that includes both privileged and nonprivileged information must be disclosed, either in whole or in part.

2023Gold Corp., 2007-NMCA-133, ¶ 23 ; see also Bhandari, 2014- 14 NMCA-018, ¶ 16, (citing Upjohn Co., 449 U.S. at 396 (providing that even though 15 in-house counsel may also benefit from the attorney-client privilege, it must be in 16 situations where legal and not technical advice is at issue)). 2 We do not again address Henry’s arguments about the difference between a fact and a communication, or her claim that a communication is not confidential if it includes a publicly known fact, but direct the reader to our previous discussion. 12 1 {26} IPRA Document No. 2 is plainly a request for legal a

2023Id. 18 {34} We find the approach taken by Upjohn Co. to be consistent with the stated 19 purposes of the attorney-client privilege in New Mexico: ‘“to encourage full and 20 frank communication between attorneys and their clients and thereby promote 15 1 broader public interests in the observance of law and administration of justice.”’ 2 Lyons, 2000-NMCA-077 , ¶ 25 (quoting Upjohn Co., 449 U.S. at 389 ).

2024See id. ¶ 9 (reviewing de novo whether the appropriate standard for privilege was applied and concluding that the evidence supported the district court’s determination as to whether the communications were business or legal advice). {34} Horton additionally argues that the Entity Communications were protected by the common interest privilege. 2 Attorney-client privilege “may be established by demonstrating that the communication occurred ‘between the client or client’s lawyer and another lawyer representing another in a matter of common interest.’” Albuquerque J., 2019-NMCA-012, ¶ 19 (alterati

2024See id. ¶ 9 (reviewing de novo whether the 15 appropriate standard for privilege was applied and concluding that the evidence 16 supported the district court’s determination as to whether the communications were 17 business or legal advice). 28 1 {34} Horton additionally argues that the Entity Communications were protected by 2 the common interest privilege. 2 Attorney-client privilege “may be established by 3 demonstrating that the communication occurred ‘between the client or client’s 4 lawyer and another lawyer representing another in a matter of common interest.’” 5 Albuquerque J., 2019-NM

2024See Fisher, 425 U.S. at 403 (providing that the attorney- client privilege “protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege”). {83} Second, under New Mexico precedent, the Padilla Report’s “primary or predominate purpose” was not to provide legal advice, and therefore is not protected by the attorney-client privilege.

2024See Fisher, 7 425 U.S. at 403 (providing that the attorney-client privilege “protects only those 8 disclosures necessary to obtain informed legal advice which might not have been 9 made absent the privilege”). 10 {83} Second, under New Mexico precedent, the Padilla Report’s “primary or 11 predominate purpose” was not to provide legal advice, and therefore is not protected 12 by the attorney-client privilege.

2014Home Prods., 790 F. Supp. 39, 41 (D.P.R. 1992) (“Even though in[-]house counsel may also benefit from the attorney-client privilege, it must be in situations where legal and not technical advice is at issue.”); Upjohn Co. v. United States, 449 U.S. 383, 396 (1981). {17} We agree with the analysis by these other courts and conclude that “[a]n in-house counsel’s communications regarding business matters, management decisions, and business advice, which neither solicit or predominantly deliver legal advice, are not privileged.” Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 650 (D.N.M. 2007).

2013Home Prods., 790 F. Supp. 39, 41 (D.P.R. 1992) (“Even though in[-]house counsel may also benefit from the attorney-client privilege, it must be in situations where legal and not technical advice is at issue.”); Upjohn Co. v. United States, 449 U.S. 383, 396 (1981). {17} We agree with the analysis by these other courts and conclude that “[a]n in-house counsel’s communications regarding business matters, management decisions, and business advice, which neither solicit or predominantly deliver legal advice, are not privileged.” Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 650 (D.N.M. 2007).

2014Home Prods., 790 F. Supp. 39, 41 (D.P.R. 1992) (“Even though in[-]house counsel may also benefit from the attorney-client privilege, it must be in situations where legal and not technical advice is at issue.”); Upjohn Co. v. United States, 449 U.S. 383, 396 (1981). {17} We agree with the analysis by these other courts and conclude that “[a]n in-house counsel’s communications regarding business matters, management decisions, and business advice, which neither solicit or predominantly deliver legal advice, are not privileged.” Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 650 (D.N.M. 2007).

2013Home Prods., 790 F. Supp. 39, 41 (D.P.R. 1992) (“Even though in[-]house counsel may also benefit from the attorney-client privilege, it must be in situations where legal and not technical advice is at issue.”); Upjohn Co. v. United States, 449 U.S. 383, 396 (1981). {17} We agree with the analysis by these other courts and conclude that “[a]n in-house counsel’s communications regarding business matters, management decisions, and business advice, which neither solicit or predominantly deliver legal advice, are not privileged.” Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 650 (D.N.M. 2007).

2014Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 147 (D.

2013Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 147 (D.

2014We relied on Duplan Corp. v. Deering Milliken, Inc., which stated more specifically that “the attorney-client privilege does not attach where the . . . attorney is giving technical or business, as opposed to legal, advice.” 397 F. Supp. 1146, 1167 (D.S.C. 1974). {14} Bhandari’s position is that Butler’s role in her separation from the Hospital involved no legal advice, and the memorandum was solely business advice.

2013We relied on Duplan Corp. v. 4 Deering Milliken, Inc., which stated more specifically that “the attorney-client privilege does not attach where the . . . attorney is giving technical or business, as opposed to legal, advice.” 397 F. Supp. 1146, 1167 (D.S.C. 1974). {14} Bhandari’s position is that Butler’s role in her separation from the Hospital involved no legal advice, and the memorandum was solely business advice.

2024Gold Corp., 2007-NMCA-133, ¶ 27 . {29} We emphasize that the common interest doctrine, Rule 11-503(B)(3), is not a stand-alone privilege; its application requires a showing that the document at issue is protected by the attorney-client privilege.

2024Gold Corp., 2007-NMCA-133, ¶ 23 (providing that 9 the attorney-client privilege “protects communications generated or received by an 10 attorney giving legal advice but does not protect communications derived from an 11 attorney giving business advice or acting in some other capacity” (emphasis added)). 12 This recognition that there is a distinction between professional legal services and 13 other services performed by an attorney has not yet yielded a clear understanding in 14 New Mexico of where exactly the demarcating line falls.

2011Taxation & 18 Revenue Dep’t, 2010-NMCA-080, ¶ 23 , 148 N.M. 877 , 242 P.3d 444 (recognizing 2 1 the attorney-client privilege as an exemption), cert. granted, 2010-NMCERT-008 , 148 2 N.M. 943 , 242 P.3d 1289 . 3 In the present case, as set forth in our notice, the district court judge sua sponte 4 called for a hearing after reading the annual report submitted to her by one of the 5 corporate guardians for Petitioner, Developmental Disabilities Planning Council, 6 Office of Guardianship and Patrick Putnam (Respondents). [RP 59] At the hearing, 7 the corporate guardian expressed concerns about t

2011Taxation & 18 Revenue Dep’t, 2010-NMCA-080, ¶ 23 , 148 N.M. 877 , 242 P.3d 444 (recognizing 2 1 the attorney-client privilege as an exemption), cert. granted, 2010-NMCERT-008 , 148 2 N.M. 943 , 242 P.3d 1289 . 3 In the present case, as set forth in our notice, the district court judge sua sponte 4 called for a hearing after reading the annual report submitted to her by one of the 5 corporate guardians for Petitioner, Developmental Disabilities Planning Council, 6 Office of Guardianship and Patrick Putnam (Respondents). [RP 59] At the hearing, 7 the corporate guardian expressed concerns about t

2024See United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990) (“Communications from attorney to client are privileged only if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence.”); Ex parte Birmingham News Co., Inc., 624 So. 2d 1117, 1130 (“No attorney-client privilege attaches to investigative reports that are merely compilations or synopses of facts found by members or associates of law firm from reviewing documents and interviewing witnesses and that are merely factual findings that were not acquired from the client.” (emphasis adde

2024See United States v. 16 Defazio, 899 F.2d 626, 635 (7th Cir. 1990) (“Communications from attorney to 17 client are privileged only if they constitute legal advice, or tend directly or indirectly 18 to reveal the substance of a client confidence.”); Ex parte Birmingham News Co., 19 Inc., 624 So. 2d 1117, 1130 (“No attorney-client privilege attaches to investigative 20 reports that are merely compilations or synopses of facts found by members or 58 1 associates of law firm from reviewing documents and interviewing witnesses and 2 that are merely factual findings that were not acquired from the c

2024See Key v. Chrysler Motors Corp., 1996-NMSC-038 , ¶ 14, 121 N.M. 764 , 918 P.2d 350 (“We are to read the statute in its entirety and construe each part in connection with every other part to produce a harmonious whole.”). {17} This conclusion is bolstered by other, more general discussions of the attorney- client privilege.

2024See Key v. Chrysler Motors Corp., 1996-NMSC-038 , ¶ 14, 121 N.M. 764 , 918 P.2d 350 (“We are to read the statute in its entirety and construe each part in connection with every other part to produce a harmonious whole.”). {17} This conclusion is bolstered by other, more general discussions of the attorney- client privilege.

2024See id. 9 {3} The OAG concedes in its motion for summary judgment that it withheld some 10 of the common interest agreements altogether, provided some agreements with 11 everything but a privilege stamp redacted, and provided heavily redacted copies of 12 other responsive documents.

2024See id. {3} The OAG concedes in its motion for summary judgment that it withheld some of the common interest agreements altogether, provided some agreements with everything but a privilege stamp redacted, and provided heavily redacted copies of other responsive documents.

2024See United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990) (“Communications from attorney to client are privileged only if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence.”); Ex parte Birmingham News Co., Inc., 624 So. 2d 1117, 1130 (“No attorney-client privilege attaches to investigative reports that are merely compilations or synopses of facts found by members or associates of law firm from reviewing documents and interviewing witnesses and that are merely factual findings that were not acquired from the client.” (emphasis adde

2024See United States v. 16 Defazio, 899 F.2d 626, 635 (7th Cir. 1990) (“Communications from attorney to 17 client are privileged only if they constitute legal advice, or tend directly or indirectly 18 to reveal the substance of a client confidence.”); Ex parte Birmingham News Co., 19 Inc., 624 So. 2d 1117, 1130 (“No attorney-client privilege attaches to investigative 20 reports that are merely compilations or synopses of facts found by members or 58 1 associates of law firm from reviewing documents and interviewing witnesses and 2 that are merely factual findings that were not acquired from the c

2022See 1997-NMSC-011, ¶ 19 .

2022See 1997-NMSC-011, ¶ 19 .

2000By adopting the Rhone approach inquiring offensive or direct use of privileged information, we believe the “shield/sword” metaphor is more accurately applied. {25} The Rhone approach is also more consistent with the purpose of the attorney-client privilege, which, as we already noted, “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981); see also Swidler & Berlin v. United States

2000By adopting the Rhone approach inquiring offensive or direct use of privileged information, we believe the “shield/sword” metaphor is more accurately applied. {25} The Rhone approach is also more consistent with the purpose of the attorney-client privilege, which, as we already noted, “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 , 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981); see also Swidler & Berlin v. United States

2007See Reynolds, 142 P.3d at 1069 (stating that the qualified privilege "does not protect lawyers who are representing clients but who act only in their own self-interest and contrary to their clients' interest" and does not protect lawyers whose actions "fall within the `crime or fraud' exception" to the attorney-client privilege provided in the rules of professional conduct); see also Rule 16-102(D) NMRA (discussing crime or fraud in the context of scope of representation); Rule 16-106(B), (C) NMRA (discussing crime or fraud in the context of confidentiality).

2007See Reynolds, 142 P.3d at 1069 (stating that the qualified privilege “does not protect lawyers who are representing clients but who act only in their own self-interest and contrary to their clients’ interest” and does not protect lawyers whose actions “fall within the ‘crime or fraud’ exception” to the attorney-client privilege provided in the rules of professional conduct); see also Rule 16-102(D) NMRA (discussing crime or fraud in the context of scope of representation); Rule 16-106(B), (C) NMRA (discussing crime or fraud in the context of confidentiality).

2019State Highway Comm’n v. Steinkraus, 1966-NMSC-134 , ¶ 4, 76 N.M. 617 , 417 P.2d 431 (“It is clear to us that the attorney-client privilege should only be applied to protect communications—not facts.”); Gingrich v. Sandia Corp., 2007-NMCA-101, ¶¶ 12-13 , 142 N.M. 359 , 165 P.3d 1135 (concluding that a client waived the attorney-client privilege for a report prepared by its attorney when the client disclosed the report to the opposing party and to third parties outside the litigation).

2019State Highway Comm’n v. Steinkraus, 1966-NMSC-134 , ¶ 4, 76 N.M. 617 , 417 P.2d 431 (“It is clear to us that the attorney-client privilege should only be applied to protect communications—not facts.”); Gingrich v. Sandia Corp., 2007-NMCA-101, ¶¶ 12-13 , 142 N.M. 359 , 165 P.3d 1135 (concluding that a client waived the attorney-client privilege for a report prepared by its attorney when the client disclosed the report to the opposing party and to third parties outside the litigation).

2018We consider whether the district court's conclusion was "clearly contrary to the logical conclusions demanded by the facts and circumstances of the case." Benz , 2013-NMCA-111 , ¶ 11, 314 P.3d 688 (internal quotation marks and citation omitted). {23} As noted previously, after first asserting the attorney-client privilege based on a purported common interest during her deposition, Sanders refused to answer the question, "[W]hat do you believe th[e] joint interest [between Brooks and APS and its Board] to have been?" She additionally refused to answer the following questions: (1) "When did disc

2018We consider whether the district court's conclusion was "clearly contrary to the logical conclusions demanded by the facts and circumstances of the case." Benz , 2013-NMCA-111 , ¶ 11, 314 P.3d 688 (internal quotation marks and citation omitted). {23} As noted previously, after first asserting the attorney-client privilege based on a purported common interest during her deposition, Sanders refused to answer the question, "[W]hat do you believe th[e] joint interest [between Brooks and APS and its Board] to have been?" She additionally refused to answer the following questions: (1) "When did disc

2024See State v. Serna, 2013-NMSC-033, ¶ 14 , 305 P.3d 936 (explaining that “the ultimate rule making authority over procedure resides in [our New Mexico Supreme Court]”). {80} The purpose of the attorney-client privilege in New Mexico is to encourage “clients to disclose more information to their attorneys.” See Bhandari, 2014-NMCA-018, ¶ 10 ; see also Lyons, 2000-NMCA-077 , ¶ 25 (providing that the purpose of the attorney- client privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and ad

2024“The burden of proving an assertion of 17 privilege rests upon the party asserting such claim.” Albuquerque J., 2019-NMCA- 18 012, ¶ 16 (internal quotation marks and citation omitted). 19 {79} I am convinced that the primary purpose of the Padilla Report was not to 20 provide legal advice, and therefore, is not protected by the attorney-client privilege. 51 1 As the ultimate authority on the scope of the attorney-client privilege, it is now up 2 to our Supreme Court to review the report and determine whether it is privileged. 3 See State v. Serna, 2013-NMSC-033, ¶ 14 , 305 P.3d 936 (explaining

2005Like the husband-wife privilege, Rule 11-505 NMRA 2005, and the attorney-client privilege, Rule 11-503 NMRA 2005, the psychotherapist-patient privilege is "rooted in the imperative need for confidence and trust." Id. at 10 , 116 S.Ct. 1923 (quoting Trammel v. United States, 445 U.S. 40, 51 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980)).

2005Like the husband-wife privilege, Rule 11-505 NMRA 2005, and the attorney-client privilege, Rule 11-503 NMRA 2005, the psychotherapist-patient privilege is "rooted in the imperative need for confidence and trust." Id. at 10 , 116 S.Ct. 1923 (quoting Trammel v. United States, 445 U.S. 40, 51 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980)).

2026The party “asserting the attorney-client privilege bears the burden of 12 demonstrating that the privilege applies.” Allen v. LeMaster, 2012-NMSC-001, ¶ 38 , 13 267 P.3d 806 . 14 {12} Although the term “professional legal services” is not defined in Rule 11-503, 15 the Court of Appeals, in Bhandari v. Artesia General Hospital, held that the 16 attorney-client privilege “protects communications generated or received by an 17 attorney giving legal advice but does not protect communications derived from an 18 attorney giving business advice or acting in some other capacity.” 2014-NMCA-018 , 19 ¶

2026Newsome v. Alarid, 1977-NMSC-076 , ¶ 34, 90 N.M. 790 , 14 568 P.2d 1236 , superseded by statute on other grounds as recognized by Republican 15 Party of N.M., 2012-NMSC-026, ¶¶ 15-16 ; see also Allen, 2012-NMSC-001 , ¶ 38 16 (“A [party] asserting the attorney-client privilege bears the burden of demonstrating 17 that the privilege applies.”).

2024Ct. for City & Cnty. of Denver, 718 P.2d 1044, 1049 (en banc) (Colo. 1986) (holding that the lengthy facts section of a memorandum prepared by an attorney investigating the issuance of a lease guaranty insurance policy did not fall within the attorney-client privilege, because the attorney’s actions in “conducting interviews with various officers and employees for the purpose of determining the factual circumstances underlying the issuance of the policy” meant that “the attorneys were acting more in the role of claims investigators than legal counsel”). {85} The only evidence seemingly relied