attorney-client privilege in West Virginia

2025Va. 316 , 333 n.21, 484 S.E.2d 199 , 216 n.21 (1997) (taking of an opposing counsel’s deposition will necessarily devolve into controversies over the attorney-client privilege and work product doctrine).

2001United Hosp. v. Bedell, 199 W.Va. 316 , 484 S.E.2d 199 (1997): "`In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal advisor; (3) the communication between the attorney and client must be [intended] to be confidential.' Syllabus Point 2, State v. Burton, 163 W.Va. 40 , 254 S.E.2d 129 (1979)." Syl. pt. 7, State ex rel.

2022Va. 431 , 460 S.E.2d 677 (1995). 3. “‘In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser; (3) the communication between the attorney and client must be identified to be confidential.’ Syllabus Point 2, State v. Burton, 163 W.Va. 40 , 254 S.E.2d 129 (1979).” Syl.

2022We have also held that “[t]he burden of establishing the attorney-client privilege . . . always rests upon the person asserting it.” Id. at 434 , 460 S.E.2d at 679 , syl. pt. 4, in part. 7 The attorney-client privilege is not absolute; it is subject certain exceptions such as the crime-fraud exception, which the plaintiffs have asserted here.6 As this Court observed in State ex rel.

2022Va. 705, 717 , 601 S.E.2d 25, 37 (2004), “[t]he crime-fraud exception has long been recognized as a means to overcome the privilege ordinarily afforded to communications between a client and his or her counsel when such communications have been made in furtherance of the commission of a crime or fraud.” In other words, ““[i]t is the purpose of the crime-fraud exception to the attorney- client privilege to assure that the “seal of secrecy” . . . between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud” or crime.’” Id., quo

2022Va. 705, 717 , 601 S.E.2d 25, 37 (2004), “[t]he crime-fraud exception has long been recognized as a means to overcome the privilege ordinarily afforded to communications between a client and his or her counsel when such communications have been made in furtherance of the commission of a crime or fraud.” In other words, ““[i]t is the purpose of the crime-fraud exception to the attorney- client privilege to assure that the “seal of secrecy” . . . between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud” or crime.’” Id., quo

2022Va. 705, 717 , 601 S.E.2d 25, 37 (2004), “[t]he crime-fraud exception has long been recognized as a means to overcome the privilege ordinarily afforded to communications between a client and his or her counsel when such communications have been made in furtherance of the commission of a crime or fraud.” In other words, ““[i]t is the purpose of the crime-fraud exception to the attorney- client privilege to assure that the “seal of secrecy” . . . between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud” or crime.’” Id., quo

2022Va. 705, 717 , 601 S.E.2d 25, 37 (2004), “[t]he crime-fraud exception has long been recognized as a means to overcome the privilege ordinarily afforded to communications between a client and his or her counsel when such communications have been made in furtherance of the commission of a crime or fraud.” In other words, ““[i]t is the purpose of the crime-fraud exception to the attorney- client privilege to assure that the “seal of secrecy” . . . between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud” or crime.’” Id., quo

2003The attorney-client privilege also "extends to others who are advised of confidential information at the direction of the attorney." Troisi, 194 W.Va. at 36 , 459 S.E.2d at 147 (citations omitted). "[T]herefore, the privilege extends to protect communication between the attorney and the agents, superiors, or attorneys in joint representation." Id.

2003The attorney-client privilege also "extends to others who are advised of confidential information at the direction of the attorney." Troisi, 194 W.Va. at 36 , 459 S.E.2d at 147 (citations omitted). "[T]herefore, the privilege extends to protect communication between the attorney and the agents, superiors, or attorneys in joint representation." Id.

2014Co. v. Gaughan, 203 W.Va. 358 , 372 n. 21, 508 S.E.2d 75 , 89 n. 21 (1998) ("The attorney-client privilege belongs to the client.”). 24 .

2004Id., 203 W.Va. at 369-70 , 508 S.E.2d at 86-87 (footnotes and citation omitted). [5] For a discussion of the availability and application of the attorney-client privilege in third-party bad faith cases, see Syl. pts. 7-10, State ex rel.

2013See also United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982) (“Any disclosure inconsistent with maintaining the confidential nature of the attorney-client relationship waives the attorney-client privilege.”).

1993As explained by the Fourth Circuit Court of Appeals in United States v. Jones, 696 F.2d 1069, 1072 (4th Cir.1982): “Any disclosure inconsistent with maintaining the confidential nature of the attorney-client relationship waives the attorney-client privilege.

2015This federal FOIA exemption “preserves to government agencies ‘such recognized evidentiary privileges as the attorney-client privilege, the attorney work-product privilege, and the executive “deliberative process” privilege.’ Schell [v. U.S. Dep’t of Justice], 843 F.2d [933] at 939 [(6th Cir. 1988)] (citing Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th Cir. 1980)).” Daily Gazette I, 198 W.Va. at 571 , 482 S.E.2d at 188 .

2015This federal FOIA exemption “preserves to government agencies ‘such recognized evidentiary privileges as the attorney-client privilege, the attorney work-product privilege, and the executive “deliberative process” privilege.’ Schell [v. U.S. Dep’t. of Health & Human Services], 843 F.2d [933] at 939 [ (6th Cir.1988) ] (citing Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th Cir.1980)).” Daily Gazette I, 198 W.Va. at 571 , 482 S.E.2d at 188 .

2004See Medical Assurance, 213 W.Va. at 472 , 583 S.E.2d at 95 (Davis, J., concurring) (“ ‘One of the more important exceptions to the attorney-client privilege is the “crime-fraud” exception.’ ” (quoting Grassmueck v. Ogden Murphy Wallace, P.L.L.C., 213 F.R.D. 567, 572 (W.D.Wash.2003))). 10 While the crime-fraud exception is widely recognized, much confusion has persisted as to its precise application.

2004See Medical Assurance, 213 W.Va. at 472 , 583 S.E.2d at 95 (Davis, J., concurring) ("`One of the more important exceptions to the attorney-client privilege is the "crime-fraud" exception.'" (quoting *37 Grassmueck v. Ogden Murphy Wallace, P.L.L.C., 213 F.R.D. 567, 572 (W.D.Wash.2003))). [10] While the crime-fraud exception is widely recognized, much confusion has persisted as to its precise application.

2004Auth., 777 P.2d 188, 195 (Alaska 1989))).

2004Auth., 777 P.2d 188, 195 (Alaska 1989))).

2004The dispositive question is whether the attorney-client communications are part of the client’s effort to commit a crime or perpetrate a fraud.”’ Medical Assurance, 213 W.Va. at 473 , 583 S.E.2d at 96 (Davis, J., concurring) (quoting First Union Nat’l Bank v. Turney, 824 So.2d 172, 187 (Fla.Dist.Ct.App.2001), stay denied, 832 So.2d 768 (Fla.Dist.Ct.App.), review denied, 828 So.2d 385 (Fla.2002) (table decision)).

2004The dispositive question is whether the attorney-client communications are part of the client's effort to commit a crime or perpetrate a fraud."' Medical Assurance, 213 W.Va. at 473 , 583 S.E.2d at 96 (Davis, J., concurring) (quoting First Union Nat'l Bank v. Turney, 824 So.2d 172, 187 (Fla.Dist.Ct.App.2001), stay denied, 832 So.2d 768 (Fla.Dist.Ct.App.), review denied, 828 So.2d 385 (Fla.2002) (table decision)).

2003United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.1950).

1995Syllabus Point 3 of Maraño, supra, states: "Conversation or material delivered by a defendant, at his attorney’s direction, to a psychiatric expert retained by the attorney in preparation for a mental defense is within the attorney-client privilege.” 15 .As stated in In re Grand Jury Investigation, 599 F.2d 1224, 1233 (3rd Cir.1979), quoting United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.1950), the traditional elements of the attorney-client privilege that identify communications that may be protected from disclosure in discovery are: " '(1) [T]he asserted holder

2024Va. 40 , 254 S.E.2d 129 (1979)) (“In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal advisor; (3) the communication between the attorney and client must be [intended] to be confidential.”). 24 client privilege to submit the communications at issue to the circuit court for in camera review.

2022Va. 431 , 460 S.E.2d 677 (1995). 3. “‘In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal adviser; (3) the communication between the attorney and client must be identified to be confidential.’ Syllabus Point 2, State v. Burton, 163 W.Va. 40 , 254 S.E.2d 129 (1979).” Syl.

2003In syllabus point 11 of Marano v. Holland, 179 W.Va. 156 , 366 S.E.2d 117 (1988), the importance of the privilege was emphasized: "The attorney-client privilege originated at common law, and has as its principal object the promotion of full and frank discourse between attorney and client so as to insure sound legal advice or advocacy." State v. Rodoussakis, 204 W.Va. 58, 68 , 511 S.E.2d 469, 479 (1998).

2003In syllabus point 11 of Marano v. Holland, 179 W.Va. 156 , 366 S.E.2d 117 (1988), the importance of the privilege was emphasized: "The attorney-client privilege originated at common law, and has as its principal object the promotion of full and frank discourse between attorney and client so as to insure sound legal advice or advocacy." State v. Rodoussakis, 204 W.Va. 58, 68 , 511 S.E.2d 469, 479 (1998).

2024Va. 481, 483 , 519 S.E.2d 179, 181 (1999) concerning the procedure required when a public body asserts the attorney- client privilege as the basis for holding an executive session; and (4) it was entitled to an award of attorney fees due to the Board’s notice violations, pursuant to West Virginia Code § 6-9A-7(b) (1999). 16 We have consolidated the five assignments of error into four discrete arguments.

2024Va. 481, 483 , 519 S.E.2d 179, 181 (1999) explains: When a public body closes an open meeting on the basis that the matters to be discussed in that meeting are exempt from the Act as a result of the attorney-client privilege and that claim is challenged, the circuit court should review in camera whether the communications do indeed fall within that privilege.

2004Brison v. Kaufman, 213 W.Va. 624, 629 , 584 S.E.2d 480, 485 (2003) ("Following a hearing and an in camera review of the documents in question, the Circuit Court entered the order ..., denying the petitioners' motion for a protective order and directing the petitioners to produce and disclose, in their entirety, the litigation file and the redacted portions of the claim file."); Peters v. County Comm'n of Wood County, 209 W.Va. 94, 97 , 543 S.E.2d 651, 654 (2000) ("[T]he circuit court must review in camera whether the communications do indeed fall within the attorney-client privilege."); Shroad

2004Brison v. Kaufman, 213 W.Va. 624, 629 , 584 S.E.2d 480, 485 (2003) ("Following a hearing and an in camera review of the documents in question, the Circuit Court entered the order ..., denying the petitioners' motion for a protective order and directing the petitioners to produce and disclose, in their entirety, the litigation file and the redacted portions of the claim file."); Peters v. County Comm'n of Wood County, 209 W.Va. 94, 97 , 543 S.E.2d 651, 654 (2000) ("[T]he circuit court must review in camera whether the communications do indeed fall within the attorney-client privilege."); Shroad

2004See Medical Assurance, 213 W.Va. at 472 , 583 S.E.2d at 95 (Davis, J., concurring) ("`One of the more important exceptions to the attorney-client privilege is the "crime-fraud" exception.'" (quoting *37 Grassmueck v. Ogden Murphy Wallace, P.L.L.C., 213 F.R.D. 567, 572 (W.D.Wash.2003))). [10] While the crime-fraud exception is widely recognized, much confusion has persisted as to its precise application.

2004See Medical Assurance, 213 W.Va. at 472 , 583 S.E.2d at 95 (Davis, J., concurring) ("`One of the more important exceptions to the attorney-client privilege is the "crime-fraud" exception.'" (quoting *37 Grassmueck v. Ogden Murphy Wallace, P.L.L.C., 213 F.R.D. 567, 572 (W.D.Wash.2003))). [10] While the crime-fraud exception is widely recognized, much confusion has persisted as to its precise application.

2008Brison v. Kaufman, 213 W.Va. 624 , 584 S.E.2d 480 (2003), this Court decided that, within the context of a first-party bad faith action against an insurer, the attorney-client privilege and work product rule attach to documents contained in an insured claim file and litigation file.

2008Brison v. Kaufman, 213 W.Va. 624 , 584 S.E.2d 480 (2003), this Court decided that, within the context of a first-party bad faith action against an insurer, the attorney-client privilege and work product rule attach to documents contained in an insured claim file and litigation file.

2003In syllabus point 11 of Marano v. Holland, 179 W.Va. 156 , 366 S.E.2d 117 (1988), the importance of the privilege was emphasized: "The attorney-client privilege originated at common law, and has as its principal object the promotion of full and frank discourse between attorney and client so as to insure sound legal advice or advocacy." State v. Rodoussakis, 204 W.Va. 58, 68 , 511 S.E.2d 469, 479 (1998).

2003In syllabus point 11 of Marano v. Holland, 179 W.Va. 156 , 366 S.E.2d 117 (1988), the importance of the privilege was emphasized: "The attorney-client privilege originated at common law, and has as its principal object the promotion of full and frank discourse between attorney and client so as to insure sound legal advice or advocacy." State v. Rodoussakis, 204 W.Va. 58, 68 , 511 S.E.2d 469, 479 (1998).