(a) Definitions. In this rule:
(1) "Client" means a person, including a public officer, corporation, association, or other organization or entity, either public or private, for whom a lawyer renders professional legal services 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.
(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.
(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 legal services.
(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:
(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 authority to claim the privilege but only on behalf of the client.
(d) Exceptions. There is no privilege under this rule:
(1) 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 was a crime or fraud;
(2) 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 vivos;
(3) 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;
(5) as to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness;
(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
(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 act upon the claim or conduct a pending investigation, litigation, or proceeding in the public interest.
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 (1981).
If the benefits this rule of privilege offers to the judicial system—that is, frank and open 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. Paragraph (a)(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 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, 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.
Paragraph (d)(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. Paragraph (d)(6) removes the privilege in these instances.
Paragraph (d)(6) 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.
SUPERSEDED: N.D.C.C. § 31-01-06(1).
CROSS REFERENCE: N.D.R. Prof. Conduct 1.6 (Confidentiality of Information).