attorney-client privilege in Rhode Island

2017See State v. von Bulow, 475 A.2d 995, 1005-06 (R.I. 1984) (explaining that the attorney-client privilege is “a narrow exception” that “limits * * * full disclosure”).

2017See Callahan, 641 A.2d at 61 (recognizing that “[o]nly [the attorney’s] financial interests [were] at stake”); cf. von Bulow, 475 A.2d at 1007 (“Consistent with these principles of fairness, it has been held that the attorney-client privilege properly serves as a shield and not as an offensive tool of litigation.”).

2017See Callahan, 641 A.2d at 61 (recognizing that “[o]nly [the attorney’s] financial interests [were] at stake”); cf. von Bulow, 475 A.2d at 1007 (“Consistent with these principles of fairness, it has been held that the attorney-client privilege properly serves as a shield and not as an offensive tool of litigation.”).

2009It is well-established in this jurisdiction that "the attorney-client privilege protects from disclosure only the confidential communications between a client and his or her attorney." State v. von Bulow , 475 A.2d 995 , 1004 (R.I. 1984) (emphasis added). *Page 9 In determining whether a communication is protected by the attorney-client privilege, it is imperative that "the privilege be narrowly construed because it limits the full disclosure of the truth." Callahan v. Nystedt 641 A.2d 58 , 61 (R.I. 1994).

2009Indeed, the elements that must be established in order to invoke the attorney-client privilege consist of the following: "`(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is [the] member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer ; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal service

1995We note that in order to invoke the attorney-client privilege successfully, the following elements must be satisfied: “(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is [a] member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (i

2017Certainly, this Court recognizes that the attorney-client privilege “should not be whittled away by fine distinctions,” Williams v. Rhode Island Hospital Trust Co., 88 R.I. 23, 47 , 143 A.2d 324, 337 (1958); however, the privilege when applicable and properly raised protects the confidential communications between the attorney and client, see von Bulow, 475 A.2d at 1004 , and not the end product, the written agreement.

2017Certainly, this Court recognizes that the attorney-client privilege “should not be whittled away by fine distinctions,” Williams v. Rhode Island Hospital Trust Co., 88 R.I. 23, 47 , 143 A.2d 324, 337 (1958); however, the privilege when applicable and properly raised protects the confidential communications between the attorney and client, see von Bulow, 475 A.2d at 1004 , and not the end product, the written agreement.

2009Just as importantly, even where the attorney-client privilege does apply, it "only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney. . . ." Upjohn , 449 U.S. at 395 .

2007The Rhode Island Supreme Court has cautioned, however, that "exceptions to the attorney-client privilege should be made only when the reason for disclosure outweighs the potential chilling of essential communications." Mortgage Guarantee Title Co. v. Cunha , 745 A.2d at 159 (citing Upjohn Co. v. United States , 449 U.S. 383 389-90 (1981)).

2017However, “[t]he attorney-client privilege protects from disclosure only the confidential communications between a client and his or her attorney.” Id. at 1004 (emphasis added) (quoting DeFusco v. Giorgio, 440 A.2d 727, 731 (R.I. 1982)).

1990See, e.g., State v. Juarez, 570 A.2d 1118 (R.I.1990); State v. von Bulow, 475 A.2d 995 (R.I.1984); DeFusco v. Giorgio, 440 A.2d 727 (R.I.1982); Wartell v. Novograd, 48 R.I. 296 , 137 A. 776 , 53 A.L.R. 365 (1927).

2010Id. ("An intent to waive one's privilege is not necessary for such a waiver to occur"). "[I]f a client wishes to preserve the privilege under such circumstances, he must take some affirmative action to preserve confidentiality." In re Von Bulow , at 101 (quoting Judge Friendly, In re Horowitz , 482 F.2d 72 , 82 (2d Cir. 1973)).

1984See, e.g., In Re Grand Jury Investigation of Ocean Transportation, 604 F.2d 672, 675 (D.C.

1998See, e.g., FDIC v. Bank of Boulder, 865 F.2d 1134, 1141 (10th Cir.1988) (FDIC may acquire even a nonassignable letter of credit), cert. denied, 499 U.S. 904 , 111 S.Ct. 1103 , 113 L.Ed.2d 213 (1991); FDIC v. Cherry, Bekaert & Holland, 129 F.R.D. 188, 193 (M.D.Fla.1989) (discussing split of authority); FDIC v. McAtee, 124 F.R.D. 662, 664 (D.Kan.1988) (transfer of assets does not generally transfer attorney-client privilege); FDIC v. Ellis, Civ.

1998See, e.g., FDIC v. Bank of Boulder, 865 F.2d 1134, 1141 (10th Cir.1988) (FDIC may acquire even a non-assignable 904, 111 S.Ct. 1103 , 113 L.Ed.2d 213 (1991); FDIC v. Cherry, Bekaert & Holland, 129 F.R.D. 188, 193 (M.D.Fla.1989) (discussing split of authority); FDIC v. McAtee, 124 F.R.D. 662, 664 (D.Kan.1988) (transfer of assets does not generally transfer attorney-client privilege); FDIC v. Ellis, Civ.

1998See, e.g., FDIC v. Bank of Boulder, 865 F.2d 1134, 1141 (10th Cir.1988) (FDIC may acquire even a nonassignable letter of credit), cert. denied, 499 U.S. 904 , 111 S.Ct. 1103 , 113 L.Ed.2d 213 (1991); FDIC v. Cherry, Bekaert & Holland, 129 F.R.D. 188, 193 (M.D.Fla.1989) (discussing split of authority); FDIC v. McAtee, 124 F.R.D. 662, 664 (D.Kan.1988) (transfer of assets does not generally transfer attorney-client privilege); FDIC v. Ellis, Civ.

1998See, e.g., FDIC v. Bank of Boulder, 865 F.2d 1134, 1141 (10th Cir.1988) (FDIC may acquire even a non-assignable 904, 111 S.Ct. 1103 , 113 L.Ed.2d 213 (1991); FDIC v. Cherry, Bekaert & Holland, 129 F.R.D. 188, 193 (M.D.Fla.1989) (discussing split of authority); FDIC v. McAtee, 124 F.R.D. 662, 664 (D.Kan.1988) (transfer of assets does not generally transfer attorney-client privilege); FDIC v. Ellis, Civ.

1998See, e.g., FDIC v. Bank of Boulder, 865 F.2d 1134, 1141 (10th Cir.1988) (FDIC may acquire even a nonassignable letter of credit), cert. denied, 499 U.S. 904 , 111 S.Ct. 1103 , 113 L.Ed.2d 213 (1991); FDIC v. Cherry, Bekaert & Holland, 129 F.R.D. 188, 193 (M.D.Fla.1989) (discussing split of authority); FDIC v. McAtee, 124 F.R.D. 662, 664 (D.Kan.1988) (transfer of assets does not generally transfer attorney-client privilege); FDIC v. Ellis, Civ.

1998See, e.g., FDIC v. Bank of Boulder, 865 F.2d 1134, 1141 (10th Cir.1988) (FDIC may acquire even a non-assignable 904, 111 S.Ct. 1103 , 113 L.Ed.2d 213 (1991); FDIC v. Cherry, Bekaert & Holland, 129 F.R.D. 188, 193 (M.D.Fla.1989) (discussing split of authority); FDIC v. McAtee, 124 F.R.D. 662, 664 (D.Kan.1988) (transfer of assets does not generally transfer attorney-client privilege); FDIC v. Ellis, Civ.

1998See, e.g., FDIC v. Bank of Boulder, 865 F.2d 1134, 1141 (10th Cir.1988) (FDIC may acquire even a nonassignable letter of credit), cert. denied, 499 U.S. 904 , 111 S.Ct. 1103 , 113 L.Ed.2d 213 (1991); FDIC v. Cherry, Bekaert & Holland, 129 F.R.D. 188, 193 (M.D.Fla.1989) (discussing split of authority); FDIC v. McAtee, 124 F.R.D. 662, 664 (D.Kan.1988) (transfer of assets does not generally transfer attorney-client privilege); FDIC v. Ellis, Civ.

1998See, e.g., FDIC v. Bank of Boulder, 865 F.2d 1134, 1141 (10th Cir.1988) (FDIC may acquire even a non-assignable 904, 111 S.Ct. 1103 , 113 L.Ed.2d 213 (1991); FDIC v. Cherry, Bekaert & Holland, 129 F.R.D. 188, 193 (M.D.Fla.1989) (discussing split of authority); FDIC v. McAtee, 124 F.R.D. 662, 664 (D.Kan.1988) (transfer of assets does not generally transfer attorney-client privilege); FDIC v. Ellis, Civ.

2009Under common law, the attorney-client privilege provides that "communications made by a client to his attorney for the purpose of seeking professional advice, as well as the responses by the attorney to such inquiries, are privileged communications not subject to disclosure." Mortgage Guarantee Title Co. v. Cunha , 745 A.2d 156 , 158-59 (R.I. 2000).

2007The Rhode Island Supreme Court has cautioned, however, that "exceptions to the attorney-client privilege should be made only when the reason for disclosure outweighs the potential chilling of essential communications." Mortgage Guarantee Title Co. v. Cunha , 745 A.2d at 159 (citing Upjohn Co. v. United States , 449 U.S. 383 389-90 (1981)).

2009Indeed, the elements that must be established in order to invoke the attorney-client privilege consist of the following: "`(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is [the] member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer ; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal service

1994The following elements must be met in order to invoke the attorney-client privilege: “(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (n) legal services or (iii) assistance in some legal proce

2009Pastore v. Samson , 900 A.2d 1067 , 1084 (R.I. 2006) ("The burden of establishing these elements is on the party advancing the privilege.").

2009It also must be remembered, that "privileges, in general, are not favored in the law and therefore should be strictly construed." Gaumond v. Trinity Repertory Co. , 909 A.2d 512 , 516 (2006) (quoting Moretti v. Lowe , 592 A.2d 855 , 857 (R.I. 1991)); see also Pastore , 900 A.2d at 1084 (holding "that the attorney-client privilege must be narrowly construed because it limits the full disclosure of the truth"); State v. von Bulow , *Page 78 475 A.2d 995 , 1006 (R.I. 1984) ("Because the attorney-client privilege limits the full disclosure of the truth, it must be narrowly construed.").

2009It also must be remembered, that "privileges, in general, are not favored in the law and therefore should be strictly construed." Gaumond v. Trinity Repertory Co. , 909 A.2d 512 , 516 (2006) (quoting Moretti v. Lowe , 592 A.2d 855 , 857 (R.I. 1991)); see also Pastore , 900 A.2d at 1084 (holding "that the attorney-client privilege must be narrowly construed because it limits the full disclosure of the truth"); State v. von Bulow , *Page 78 475 A.2d 995 , 1006 (R.I. 1984) ("Because the attorney-client privilege limits the full disclosure of the truth, it must be narrowly construed.").

2006We note that Moretti v. Lowe, 592 A.2d 855, 856 (R.I.1991) involved the statutory privilege set out in G.L.1956 § 23-17-25 that applies to medical peer review boards in cases of litigation against physicians.

2009The distinction is chiefly that the house counsel gives advice to one regular client, the outside counsel to several clients." Id. at 360 ; see also Shelton v. American Motors Corp. , 805 F.2d 1323 , 1326 n. 3 (8 th Cir. 1986) ("The parties do not dispute that a corporation's `in-house counsel' is afforded the same protection as `outside counsel' with respect to the work-product doctrine and the attorney-client privilege."); O'Brien v. Board of Education , 86 F.R.D. 548 , 549 (S.D.N.Y. 1980) (fact that document was authored by in-house counsel rather than by independent counsel was "of no sign

1994The following elements must be met in order to invoke the attorney-client privilege: “(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (n) legal services or (iii) assistance in some legal proce

1997In order to invoke the privilege the party seeking to prevent discovery must establish that "(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some leg

1990In Juarez, 570 A.2d at 1121 , we also cited a number of cases in which the attorney-client privilege was not breached in respect to statements made by codefend-ants under the confidentiality shield of the attorney-client ‘ privilege.

1994The following elements must be met in order to invoke the attorney-client privilege: “(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (n) legal services or (iii) assistance in some legal proce

1984In United States v. Kelly, 569 F.2d 928, 938 (5th Cir.), cert. denied, 439 U.S. 829 , 99 S.Ct. 105 , 58 L.Ed.2d 123 (1978),- the court set forth the requisite elements as “(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is [the] member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily ei

1990See also State v. Hitopoulus, 279 S.C. 549 , 309 S.E.2d 747 (1983), where statements by a codefendant to a psychiatrist were found to be protected by the attorney-client privilege.

1990See also State v. Hitopoulus, 279 S.C. 549 , 309 S.E.2d 747 (1983), where statements by a codefendant to a psychiatrist were found to be protected by the attorney-client privilege.

1990We do not believe that mere curiosity should be enough to overcome the attorney-client privilege.” State v. Silva, 201 Conn. 244, 256 , 513 A.2d 1202, 1208 (1986). *1122 In the case at bar Juarez has no knowledge concerning whether useful, impeaching, or exculpatory material will result from the disclosure of the subpoenaed material.

1990We do not believe that mere curiosity should be enough to overcome the attorney-client privilege.” State v. Silva, 201 Conn. 244, 256 , 513 A.2d 1202, 1208 (1986). *1122 In the case at bar Juarez has no knowledge concerning whether useful, impeaching, or exculpatory material will result from the disclosure of the subpoenaed material.

1990See Commonwealth v. Hutchinson, 290 Pa.Super. 254 , 434 A.2d 740 (1981), where the Pennsylvania appellate court found the statements of a codefendant, made to a public defender who had represented both defendants, to be protected by the attorney-client privilege.

1990See Commonwealth v. Hutchinson, 290 Pa.Super. 254 , 434 A.2d 740 (1981), where the Pennsylvania appellate court found the statements of a codefendant, made to a public defender who had represented both defendants, to be protected by the attorney-client privilege.

2017The attorney-client privilege is a personal privilege, see Lapan v. Lapan, 100 R.I. 498, 503 , 217 A.2d 242, 246 (1966); therefore, only the client can implicitly or explicitly assert or waive the privilege.

2017The attorney-client privilege is a personal privilege, see Lapan v. Lapan, 100 R.I. 498, 503 , 217 A.2d 242, 246 (1966); therefore, only the client can implicitly or explicitly assert or waive the privilege.

2013See Henderson, 966 A.2d at 1249 (“Because we conclude that the * * * report is shielded from discovery based on the work-product privilege, we need not reach the defendant’s alternative argument that the report is protected by the attorney-client privilege.”).

2010Id. ("An intent to waive one's privilege is not necessary for such a waiver to occur"). "[I]f a client wishes to preserve the privilege under such circumstances, he must take some affirmative action to preserve confidentiality." In re Von Bulow , at 101 (quoting Judge Friendly, In re Horowitz , 482 F.2d 72 , 82 (2d Cir. 1973)).