Insight

THE “ATTORNEY-CLIENT” PRIVILEGE: How, When (and Why) the Communications between You and Your Attorney are Protected - Part 1

Published on: October 10, 2017

This blog is one of a two-part series regarding perhaps the most important aspect of the attorney-client relationship -- the attorney-client privilege. So, what is it and why is the privilege so important? In short, the attorney-client privilege is a legal doctrine that protects communications between a client and his or her attorney. Unlike most other relationships, the privilege stays in place even after the relationship is terminated. The purpose of the privilege is to allow clients to have open and honest communications with their attorney. LSA-L.C.E. art. 506. However, not all communications between a client and attorney are privileged and certain requirements must be met for the privilege to attach.

-Existence of Attorney-Client Relationship. An attorney-client relationship must be in place. Louisiana law does not require that the attorney be formally retained or payment made for the privilege to attach. The privilege may apply even when the client merely discusses a legal matter with an attorney when the client reasonably believes the attorney is acting as his or her attorney.

-Confidential Communications. While the communication can take many forms (oral, written, digital, etc.) it is protected only if it was intended to be confidential, which generally means that the communication was not intended to be disclosed to others not involved in the attorney-client relationship or the legal representation. For example, if a client meets with his attorney and brings a friend along, then the meeting may not be protected by the privilege. Because the privilege is for the protection of the client, the client may choose to intentionally waive the privilege, or may do so inadvertently through their actions.

-Legal Services. The communication must be related to obtaining or facilitating the legal services offered by the attorney. The privilege has been held to apply to the employees of the attorney and sometimes experts retained to assist in the case.

When applicable, the attorney-client privilege applies not only to what was said, but also to your attorney’s observations of your mental, emotional, and physical state at the time you communicate. The privilege does not generally apply to information gathered by the attorney from other sources; however, another doctrine, the “work product” doctrine, may nevertheless protect such information.It is important that clients understand that the privilege does not apply merely because the client chooses to involve the attorney in the communication. Generally, the privilege only applies when the communication was intended as confidential and to further the legal services offered by the attorney. In this way, the client may not be allowed to utilize the privilege where they include the attorney in a communication with a third-party that is not otherwise protected.While the attorney-client privilege safeguards the attorney-client relationship, ensures that clients can tell their attorney the things they need to know about a case, and assists the attorney to provide the best legal help possible, it is also subject to restrictions. These restrictions are explored in Part 2 of this series.

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Keogh Cox & Wilson, Ltd. provides this blog as a public service for general information only. The materials contained herein may not reflect the most current legal developments or even express the opinion of all or even most of Keogh Cox attorneys. Such material does not constitute legal advice or form any attorney-client relationship. Keogh Cox and all contributing author(s) expressly disclaim all liability to any person with respect to the contents of this Web site and Blog and expect that no reliance will be made upon the information provided.

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A Jury Awards $5 Million In Favor of Spoked Manufacturing

A Louisiana federal jury awarded $5 million in favor of Spoked Manufacturing in a suit against Besco Tubular. Keogh Cox Partner, Tori S. Bowling and other counsel represented Spoked Manufacturing in the case. Find out more about this decision at LAW 360.

https://www.law360.com/articles/1180212/jury-hits-besco-with-5m-verdict-in-oil-drilling-patent-case

Insight

Can a Corporation Drive Drunk?: A Look at Employer Liability for Punitive Damages

The power to punish is generally the role of the criminal courts. Civil courts concern themselves with making a plaintiff "whole." In fact, it would be legal error for a civil court to impose recovery against a defendant as a form of punishment--with one notable exception. When "punitive damages" are allowed, a civil court may "punish" a defendant.

In Louisiana, punitive damages are only allowed when a statute specifically says they may be awarded. One of these statutes is La. Civil Code article 2315.4, which allows punitive damages when the plaintiff’s injuries were caused “by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.” Based upon the words used, punitive recovery for drunk driving would appear limited to recovery against the individual who was "operating a motor vehicle." However, what if the driver was intoxicated while “on the clock,” in the "course and scope" of his employment? Can his employer also be liable for punitive damages? Unfortunately, the answer to these questions is unclear and may vary depending upon where the case was filed.

The First and Third Circuits indicate that an employer should not be liable for these damages. In Darby v. Sentry Ins. Auto. Mut. Co., the First Circuit held that an employer could not be liable for punitive damages when its intoxicated employee was at fault for an accident, even when the employer was aware the employee had a history of alcohol abuse. The court reasoned that the principle of strict construction of punitive statutes prevented it from holding anyone other than the driver liable. 2007-0407 (La. App. 1 Cir. 3/23/07), 960 So. 2d 226, writ denied, 2007-0638 (La. 3/28/07), 953 So. 2d 59. Similarly, in Romero v. Clarendon Am. Ins. Co., the Third Circuit ruled that an employer could only be liable for the compensatory damages caused by its employee, to the exclusion of punitive damages. 2010-338 (La. App. 3 Cir. 12/29/10), 54 So. 3d 789, writ denied, 2011-0551 (La. 4/25/11), 62 So. 3d 96. A federal court decision from the Western District of Louisiana also supports this conclusion. See Lankford v. Nat'l Carriers Inc., 2015 WL 518736 (W.D. La. Feb. 6, 2015).

In contrast, the Fourth and Fifth Circuits have found that an employer can be liable for its intoxicated employee’s punitive damages. The Fourth Circuit, offering little commentary, found that an employer could be responsible for damages caused by its employee’s acts, including punitive damages under art. 2315.4. See Curtis v. Rome, 98-0966 (La. App. 4 Cir. 5/5/99), 735 So. 2d 822. Punitive damages were also awarded against an employer in a Fifth Circuit case, Levet v. Calais & Sons, Inc., 751 So.2d 153 (La. Ct. App. 1987). However, in Levet, the employer stipulated to liability and essentially agreed to be responsible for punitive damages.

While the Louisiana Supreme Court has not squarely addressed the issue, language from Berg v. Zummo tends to indicate that the employer may not be liable for drunk-driving punitive damages. In Berg, the Supreme Court examined art. 2315.4 to determine whether a bartender could be liable for providing an intoxicated driver with alcohol prior to the accident. In that context, the Court held that art. 2315.4 did not extend to someone who “contributed to” the intoxication because that Article “reflects the legislature’s intent to penalize only the intoxicated driver.” 2000-1699 (La. 4/25/01), 786 So. 2d 708, 718. However, the Berg Court specifically acknowledged lower court decisions that permitted such liability for employers, reserving its judgment on that issue for another day.

So, if someone asks you whether a corporation can drive drunk, the proper answer may be this: depends on who you ask.

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2020 Super Lawyers

Congratulations to Chris Jones for being honored in the 2020 list of Louisiana Super Lawyers. Chris was selected for Class Action/Mass Torts. This selection is based on an evaluation of 12 indicators including peer recognition and professional achievement in legal practice. The Super Lawyers list recognizes no more than 5 percent of attorneys in each state.

Congratulations to Tori Bowling, Reynolds LeBlanc, Jenny McLin, and Richard Wolff for being honored in the 2020 list of Louisiana Super Lawyers Rising Stars. Tori Bowling was selected for Civil Litigation: Defense. Reynolds LeBlanc was selected for Appellate. Jenny McLin was selected for Workers’ Compensation. Richard Wolff was selected for Civil Litigation: Defense. The Rising Stars list recognizes no more than 2.5 percent of attorneys in each state.