attorney-client privilege in Mississippi

2024The scope of the attorney-client privilege is broadly interpreted and “relates to and covers all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client.” Hewes v. Langston, 853 So. 2d 1237, 1244 (¶28) (Miss. 2003) (emphasis in Hewes) (quoting Barnes v. State, 460 So. 2d 126, 131 (Miss.1984)).

2021The application of the attorney-client privilege is “a mixed question of law and fact.” Hewes v. Langston, 853 So. 2d 1237, 1241 (¶13) (Miss. 2003).

2024The scope of the attorney-client privilege is broadly interpreted and “relates to and covers all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client.” Hewes v. Langston, 853 So. 2d 1237, 1244 (¶28) (Miss. 2003) (emphasis in Hewes) (quoting Barnes v. State, 460 So. 2d 126, 131 (Miss.1984)).

2005Nester asserts that this Court has held that the attorney-client privilege "relates to and covers all information regarding the client received by the attorney in h[er] professional capacity and in the course of h[er] representation of the client." Barnes v. State, 460 So.2d 126, 131 (Miss.1984) (emphasis added).

2018Fresenius claims the attorney notifications are precisely the kind of communications that the attorney client privilege protects from disclosure under Upjohn Co. v. United States , 449 U.S. 383 , 390, 394, 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981) (holding "[t]he communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel.") ).

2018Fresenius claims the attorney notifications are precisely the kind of communications that the attorney client privilege protects from disclosure under Upjohn Co. v. United States , 449 U.S. 383 , 390, 394, 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981) (holding "[t]he communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel.") ).

2007Clinic for Women, P.A. v. Moore, 836 So.2d 767, 768 (Miss.2003). [10] The issue this Court addressed in the defendants' interlocutory appeal was whether Moore's voluntary use of advice and communications from her former attorney as a basis to avoid the defendants' statute of limitations defense waived the attorney-client privilege so as to allow the defendants to conduct discovery regarding the former attorney's file and advice.

2005Clinic for Women, P.A. v. Moore, 836 So. 2d 767, 768 (Miss. 2003).10 The issue this Court addressed in the defendants’ interlocutory appeal was whether Moore’s voluntary use of advice and communications from her former attorney as a basis to avoid the defendants’ statute of limitations defense waived the attorney-client privilege so as to allow the defendants to conduct discovery regarding the former attorney’s file and advice.

2003Further, “[t]he work product privilege is very different from the attorney-client privilege.” Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir.1989).

2003Further, "[t]he work product privilege is very different from the attorney-client privilege." Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir.1989).

2003To the contrary, ... the privilege stands in degrogation of the public’s ‘right to every man’s evidence,’ 8 Wigmore (McNaughton rev. ed.1961) s 2192 at 70, and as ‘an obstacle to the investigation of the truth,’ Id., s 2291 at 554; thus, as Wigmore has said, ‘It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.’ In re Horowitz, 482 F.2d 72, 81 (2nd Cir.1973), cert. denied, 414 U.S. 867 , 94 S.Ct. 64 , 38 L.Ed.2d 86 (1973).

2003To the contrary, ... the privilege stands in degrogation of the public's `right to every man's evidence,' 8 Wigmore (McNaughton rev. ed.1961) s 2192 at 70, and as `an obstacle to the investigation of the truth,' Id., s 2291 at 554; thus, as Wigmore has said, `It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.' In re Horowitz, 482 F.2d 72, 81 (2nd Cir.1973), cert. denied, 414 U.S. 867 , 94 S.Ct. 64 , 38 L.Ed.2d 86 (1973).

2003In United States v. Pipkins, 528 F.2d 559, 562-63 (5th Cir.1976), the Fifth Circuit stated that: The attorney-client privilege, however, is not a broad rule of law which interposes a blanket ban on the testimony of an attorney.

2003In United States v. Pipkins, 528 F.2d 559, 562-63 (5th Cir.1976), the Fifth Circuit stated that: The attorney-client privilege, however, is not a broad rule of law which interposes a blanket ban on the testimony of an attorney.

2023See, e.g., Haynes, 597 So. 2d at 618 (addressing the work-product privilege and what exceptions may apply); Hewes, 853 So. 2d 26 at 1244-47 (addressing the attorney-client privilege, along with the work-product privilege and the exceptions to these privileges).

1994Therefore, it should not be able to routinely enjoy the attorney-client privilege or to protect its records as "work product." Haynes v. Anderson, 597 So.2d 615, 620-623 (Miss. 1992) (McRae, J., concurring).

2007State v. Olwell, 64 Wash.2d 828 , 394 P.2d 681, 685 (1964).

2007State v. Olwell, 64 Wash.2d 828 , 394 P.2d 681, 685 (1964).

2005"The application of privilege is properly a mixed question of law and fact, with the circuit court's factual findings reviewed for clear error and its interpretation of the law reviewed de novo." Hewes v. Langston, 853 So.2d 1237, 1241 (Miss.2003) (citing United States v. Neal, 27 F.3d 1035, 1048 (5th Cir.1994)).

2004“The application of privilege is properly a mixed question of law and fact, with the circuit court's factual findings reviewed for clear error and its interpretation of the law reviewed de novo.” Hewes v. Langston, 853 So.2d 1237, 1241 (Miss. 2003) (citing United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994)).

2005It is notable, however, that the Fifth Circuit "ha[s] recognized a narrow exception to this general rule . . . when revealing the identity of the client . . . would itself reveal a confidential communication." Reyes-Requena I, 913 F.2d 1118, 1126 (5th Cir.1990) (citing United States v. Jones, 517 F.2d 666, 668 (5th Cir.1975), and In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.1982) (en banc)). ¶ 13.

2004It is notable, however, that the Fifth Circuit “ha[s] recognized a narrow exception to this general rule . . . when revealing the identity of the client . . . would itself reveal a confidential communication.” Reyes-Requena I, 913 F.2d 1118, 1126 (5th Cir. 1990) (citing United States v. Jones, 517 F.2d 666, 688 (5th Cir. 1975), and In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir. 1982) (en banc)). ¶13.

2005It is notable, however, that the Fifth Circuit "ha[s] recognized a narrow exception to this general rule . . . when revealing the identity of the client . . . would itself reveal a confidential communication." Reyes-Requena I, 913 F.2d 1118, 1126 (5th Cir.1990) (citing United States v. Jones, 517 F.2d 666, 668 (5th Cir.1975), and In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.1982) (en banc)). ¶ 13.

2004It is notable, however, that the Fifth Circuit “ha[s] recognized a narrow exception to this general rule . . . when revealing the identity of the client . . . would itself reveal a confidential communication.” Reyes-Requena I, 913 F.2d 1118, 1126 (5th Cir. 1990) (citing United States v. Jones, 517 F.2d 666, 688 (5th Cir. 1975), and In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir. 1982) (en banc)). ¶13.

2005Commerce Nat'l Bank, 974 F.2d 127 (9th Cir. 1992))("the identity of the client [is] usually not protected from disclosure by the attorney-client privilege"); see also In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423, 1431 (5th Cir.1991) ("As a general rule, client identity [is] not protected as privileged." (citation omitted)).

2004Commerce Nat'l Bank, 974 F.2d 127 (9th Cir. 1992)(“the identity of the client [is] usually not protected from disclosure by the attorney-client privilege”); see also In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423, 1431 (5th Cir. 1991) (“As a general rule, client identity [is] not protected as privileged.”(citation omitted)).

2005It is notable, however, that the Fifth Circuit "ha[s] recognized a narrow exception to this general rule . . . when revealing the identity of the client . . . would itself reveal a confidential communication." Reyes-Requena I, 913 F.2d 1118, 1126 (5th Cir.1990) (citing United States v. Jones, 517 F.2d 666, 668 (5th Cir.1975), and In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.1982) (en banc)). ¶ 13.

2004It is notable, however, that the Fifth Circuit “ha[s] recognized a narrow exception to this general rule . . . when revealing the identity of the client . . . would itself reveal a confidential communication.” Reyes-Requena I, 913 F.2d 1118, 1126 (5th Cir. 1990) (citing United States v. Jones, 517 F.2d 666, 688 (5th Cir. 1975), and In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir. 1982) (en banc)). ¶13.

2003In Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., 249 Conn. 36 , 730 A.2d 51, 52-53 (1999), the Connecticut Supreme Court expounded three different scenarios where the attorney-client privilege is waived by voluntarily injecting a material issue into a litigated case: Because of the important public policy considerations that necessitated the creation of the attorney-client privilege, the "at issue," or implied waiver, exception is invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action.

2003In Metropolitan Life Insurance Co. v. Aetna Casualty & Surety Co., 249 Conn. 36 , 730 A.2d 51, 52-53 (1999), the Connecticut Supreme Court expounded three different scenarios where the attorney-client privilege is waived by voluntarily injecting a material issue into a litigated case: Because of the important public policy considerations that necessitated the creation of the attorney-client privilege, the "at issue," or implied waiver, exception is invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action.

1998For example, in Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir.1989), the Court said, "A defendant may not use the fifth amendment to shield herself from the opposition's inquiries during discovery only to impale her accusers with surprise testimony at trial." See also Pack v. Beyer, 157 F.R.D. 219, 221-22 (D.N.J.1993)(absent extraordinary circumstances a party cannot use an official information privilege or a qualified state secrets privilege to avoid discovery while expecting to use the information he claims to be privileged at summary judgment or trial); Int'l Telephone & Tele

1996Fla. 1973)(a party cannot avoid pretrial discovery by asserting the attorney client privilege as to information he intends to produce at trial.); Southern Bell Telephone & Telegraph Co. v. Kaminester, 400 So. 2d 804, 806-07 (Fla. Dist.

2016On interlocutory appeal, this Court held that the confidentiality agreement and sealing order were in place “to prevent public dissemination” of the litigation and settlement, “not to prevent the [clients] from obtaining information relating to the case they participated in as plaintiffs.”13 And contrary to the dissent’s contention, Williamson’s relevant holding did not in any respect turn on the existence of the attorney-client privilege, but rather, on the purpose for orders sealing documents: to prevent public dissemination. 9 Williamson v. Edmonds, 880 So. 2d 310, 321 (Miss. 2004). 10 Id.

2016On interlocutory appeal, this Court held that the confidentiality agreement and sealing order were in place “to prevent public dissemination” of the litigation and settlement, “not to prevent the [clients] from obtaining information relating to the case they participated in as plaintiffs.”13 And contrary to the dissent’s contention, Williamson’s relevant holding did not in any respect turn on the existence of the attorney-client privilege, but rather, on the purpose for orders sealing documents: to prevent public dissemination. 9 Williamson v. Edmonds, 880 So. 2d 310, 321 (Miss. 2004). 10 Id.

2005Commerce Nat'l Bank, 974 F.2d 127 (9th Cir. 1992))("the identity of the client [is] usually not protected from disclosure by the attorney-client privilege"); see also In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423, 1431 (5th Cir.1991) ("As a general rule, client identity [is] not protected as privileged." (citation omitted)).

2004Commerce Nat'l Bank, 974 F.2d 127 (9th Cir. 1992)(“the identity of the client [is] usually not protected from disclosure by the attorney-client privilege”); see also In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423, 1431 (5th Cir. 1991) (“As a general rule, client identity [is] not protected as privileged.”(citation omitted)).

2005The court stated, "There is simply no recognized principle of law by which such recognized privileges as the attorney-client privilege, the priest-penitent privilege or the privilege against self-incrimination can be ignored and the evidence compelled despite the assertion of those privileges no matter the urgency of a criminal defendant's need for the protected information." Id. at 1272 (¶ 50) (quoting Windham v. State, 800 So.2d 1257, 1261 (¶ 12)(Miss.Ct.App.2001)). ¶ 30.

2003Id. at 1261-62 . ¶ 51.

2000Id.

1992In Bennett v. State, 293 So.2d 1, 5 (Miss. 1974), overruled on other grounds, 579 So.2d 555, 559 (Miss. 1991), this Court found that testimony by a client regarding communications with his attorney about the possibility of appeal operated as a waiver of the privilege on the "sole issue of whether *375 or not a discussion of appeal was had." Although in Bennett the testimony of the client was an accusation against his attorney and a limited waiver of privilege allowed the attorney to respond to this attack, it nonetheless allowed a partial waiver of attorney-client privilege.

2024Cumbest also appears to assert that the city council, itself, put the prehearing email 9 Indeed, as other states have recognized, “[a]n attorney, . . . unlike the client, cannot unilaterally waive [the attorney-client] privilege.” Woodbury Knoll LLC v. Shipman & Goodwin LLP, 48 A.3d 16 , 32 (Conn. 2012); see Lightbody v. Rust, 739 N.E.2d 840, 844 (Ohio Ct. App. 2000) (“It is axiomatic that only the client can waive the attorney-client privilege . . . .