M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 502, N.D.R.Ev.; Lawyer-Client Privilege
The Committee has a request for review of N.D.R.Ev. 502, which is patterned after Unif. R. Evid. 502. The Uniform Rule was amended in 1986 to get rid of the "control group" test for determining the scope of the attorney-client privilege.
The U.S. Supreme Court rejected the "control group" test in Upjohn v. United States, 449 U.S. 383 (1981). Under the "control group" test the attorney-client privilege does not apply to communications by employees of the client who are not responsible for obtaining professional legal services, or for acting upon the legal advice.
The Upjohn Court said the "control group test" overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable the lawyer to give sound and informed advice. Id. at 390. In the corporate context, it will frequently be employees beyond the control group who posses the information needed by the corporation's lawyers. Id. at 390.
Should N.D.R.Ev. 502 be amended to follow the 1986 amendment to Unif. R. Evid. 502? The 1986 amendment expands who is a representative of the client for the purpose of the attorney-client privilege. Under the amended rule, a representative includes 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." Unif. R. Evid. 502(a)(2).