RULE 502. LAWYER-CLIENT PRIVILEGE
used in In this rule:
(1) "Client" means a person, including a public officer, corporation, association, or other
organization or entity, either public or private,
who is rendered for whom a
professional legal services by a lawyer, or who consults a lawyer with a
view to obtaining
professional legal services from the lawyer.
(2) A communication is "confidential" if it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
(3) "Lawyer" means a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or country.
(2) "Representative of the client" means:
(A) A person who has authority to obtain professional legal services, or to act on
thereby rendered, on behalf of the client, or
(B) a person who is specifically authorized to provide the client's lawyer with, or
from the lawyer, information relating to the legal services being rendered and that was
acquired during the course of, or as a result of, such person's relationship with the client as
principle, employee, officer or director, and is provided to, or received from, the lawyer for
the purpose of obtaining for the client legal advice or other legal services of the lawyer.
(3) "Lawyer" means a person authorized, or reasonably believed by the client to be
authorized, to engage in the practice of law in any state or nation.
(4) "Representative of the client" means a person having authority to obtain professional legal services, or to act on legal advice rendered, on behalf of the client or a person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.
(4) (5) "Representative of the lawyer" means a person
employed, or reasonably believed
by the client to be employed, by the lawyer to assist the lawyer in rendering professional
(5) A communication is "confidential" if not intended to be disclosed to third
than those to whom disclosure is made in furtherance of the rendition of professional legal
services to the client or those reasonably necessary for the transmission of the
(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent
any other person from disclosing a confidential communication made for the purpose of
facilitating the rendition of professional legal services to the client
, if the communication
(1) between the client or a representative of the client and the client's lawyer or a representative of the lawyer,
(2) between the lawyer and a representative of the lawyer,
(3) by the client or a representative of the client or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein,
(4) between representatives of the client or between the client and a representative of the client, or
(5) among lawyers and their representatives representing the same client.
(c) Who may claim the privilege. The privilege under this rule 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. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have the authority to claim the privilege, but only on behalf of the client.
(d) Exceptions. There is no privilege under this rule:
Furtherance of crime or fraud. If if the services of the lawyer
were sought or obtained
to enable or aid anyone to commit or plan to commit what the client knew or reasonably
should have known to be was a crime or
Claimants through same deceased client. As 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 transaction inter
Breach of duty by a lawyer or client. As as to a
communication relevant to an issue of
breach of duty by a lawyer to the client or by a client to the lawyer .;
(4) as to a communication necessary for a lawyer to defend in a legal proceeding an accusation that the lawyer assisted the client in criminal or fraudulent conduct;
(4) Document attested by a lawyer. As (5) as to a communication
relevant to an issue
concerning an attested document to which the lawyer is an attesting
(5) Joint clients. As (6) 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 of them to a
lawyer retained or consulted in common, when offered in an action between or among any
of the clients .; or
(6) Public officer or agency. As (7) as to a communication
between a public officer or
agency and its lawyers unless the communication concerns a pending investigation, claim,
or action and the court determines that disclosure will seriously impair the ability of the
public officer or agency to process act uponthe claim or conduct a
litigation, or proceeding in the public interest.
Rule 502 was amended, effective March 1, 2001; March 1, 2014.
The amendment to subdivision (a)(2) Paragraph (a)(4) expands
the definition of who
constitutes a "representative of the client." The rule is no longer limited to the "control
group," i.e. people who have authority to obtain professional legal services, or to act on the
advice rendered on behalf of the client. See Upjohn Co. v. United States, 449 U.S. 383
If the benefits this rule of privilege offers to the judicial system that is, frank and
disclosure of facts by a client are to be realized, then a client needs to be assured that
confidential communications made to those necessarily involved in the performance of legal
services will not be disclosed.
(a)( 4 5) achieves this by including, as
privileged communications, those made to a lawyer's representative. As used in this rule, the
term "employed" is not limited to those employed for compensation.
Paragraph (a)(5) was amended, effective March 1, 2014, to include the language "or reasonably believed by the client to be employed" to assure that the client does not lose the benefit of the privilege in situations where a representative of a lawyer is not in the employment of the lawyer, but is nevertheless reasonably believed by the client to be employed by the lawyer at the time of the communication intended by the client to be confidential. While the test in this subdivision, as in paragraph (a)(3), is partially subjective, it is not totally subjective since there must be some reasonable basis for the belief.
The general rule of privilege stated in subdivision (b) is intended to encompass all communications necessarily made in the performance of legal services, not just those made between a client and his attorney.
Subdivision (c) states, generally, that this privilege may be claimed by the client or representative of the client and that a lawyer and representative of the lawyer are presumed to have authority to claim the privilege.
As to the exception stated in
subdivision paragraph (d)(1), it has
been observed that "Since
the policy of the privilege is that of promoting the administration of justice, it would be a
perversion of the privilege to extend it to the client who seeks advice to aid him in carrying
out an illegal or fraudulent scheme." McCormick on Evidence § 95 at 199 (2d ed. 1972).
The privilege afforded by this rule is the client's; all other claimants have only derivative
authority to assert the privilege. Thus,
subdivision paragraph (d)(2)
provides that, in an
action to determine which party shall take through a deceased client, the action is not adverse
to the deceased client and the justification for allowing the privilege is dissolved. In such
cases, "The interest of the estate as well as the interest of the deceased client demand that the
truth be determined." In re Graf's Estate, 119 N.W.2d 478 (N.D. 1963).
In cases of dispute between attorney and client,
paragraph (d)(3) provides that
the privilege does not apply. As to these parties, the communication could not have been
intended to be confidential.
A new paragraph (d)(4) was added, effective March 1, 2014, providing that there is no privilege under the rule "as to a communication necessary for a lawyer to defend in a legal proceeding a charge that the lawyer assisted the client in criminal or fraudulent conduct." Access to otherwise privileged communications seems essential if the lawyer is defending a charge of assisting a client in criminal or fraudulent conduct.
Subdivision Paragraph (d)( 4 5) states
that, as an attesting witness, an attorney may testify
relevant to issues concerning the attested document, for as to these matters the attorney is not
acting in his professional capacity. Consider also, in this regard, the "scrivener" exception
to the privilege. O'Neill v. Murray, 6 Dak. 107, 50 N.W. 619 (1888); Bolyea v. First
Presbyterian Church of Wilton, 196 N.W. 2d 149 (N.D. 1972).
It cannot be said that communications made between or among joint clients were intended
to be confidential as to those clients.
(d)( 5 6) removes the privilege
in these instances.
Subdivision Paragraph (d)( 6 7)
provides, in the usual instance, that communications
between a public agency and its attorneys are not privileged. Exception is made for those
instances in which the court determines that disclosure will "seriously impair" the listed
functions of the public agency.
Sources: Joint Procedure Committee Minutes
: of April 25-26, 2013,
page 28; September
23-24, 1999, pages 6-7; January 29, 1976, pages 2, 3. Unif. R. Evid. 502 (1974).
Superseded: N.D.C.C. § 31-01-06(1).
Cross Reference: N.D.R. Prof. Conduct 1.6 (Confidentiality of Information).