How does LRC handle confidential information?
LRC is committed to maintaining in confidence all information received from or through
the attorney-customer. The only exceptions to document confidentiality are if the
information is already known by LRC before it was communicated to LRC by the customer;
if it was lawfully disclosed to LRC by any third party; or if it is information
that is generally known or is in the public domain.
LRC's stated commitment to confidentiality is buttressed by four independent obligations
or doctrines: (a) contract obligations; (b) ethical obligations; (c) attorney-client
privilege; and (d) workproduct doctrine.
All of LRC's research attorneys are bound by an express contractual provision to
maintain the confidentiality of all information relating to the requesting attorney
and his or her client and cases, subject to the exceptions noted above. Moreover,
LRC's research attorney contracts provide that the research attorney's "duty to
maintain confidentiality extends beyond the expiration of this Agreement and that
[the research attorney] will never discuss or divulge any such confidential information
unless specifically authorized to do so by LRC."
This contractual obligation of confidentiality is reiterated and reinforced in LRC's
Procedures and Policy Manual, which expressly states: "Confidentiality must be strictly
observed. No research project should ever be discussed with people who do not work
Confidentiality of matters relating to the attorney-customer and his or her client,
case, or transaction is further assured by various Rules of Professional Conduct,
specifically Rule 1.6 (prohibiting a lawyer from revealing information relating
to representation of a client unless the client consents after consultation, except
for disclosures impliedly authorized to carry out the representation), and Rule
5.2 (providing that even subordinate lawyers who act at direction of another person
are bound by the Rules of Professional Conduct). See also Restatement of the Law
Third, Law Governing Lawyers 12(1) (2000) (providing that a lawyer must conform
to the requirement of the applicable lawyer code even when acting at the direction
of another lawyer or person). Thus LRC's research attorneys are bound by applicable
Rules of Professional Conduct to maintain in confidence information relating to
the customer and his or her client.
The attorney-customer, of course, does not violate his or her own confidentiality
obligation by disclosing confidential information to LRC and its research attorneys:
A lawyer generally has authority to use or disclose confidential client information
to persons assisting the lawyer in representing the client. Those include other
lawyers in the same firm and employees such as secretaries and paralegals. A lawyer
may also disclose information to independent contractors who assist in the representation
such as investigators, lawyers in other firms, prospective expert witnesses, and
public courier companies and photocopy shops to the extent reasonably appropriate
in the client's behalf.
Restatement 60 cmt. f.
The Attorney-Client Privilege
The attorney-client privilege is a rule of evidence recognized, with minor variations,
in every American jurisdiction. See Restatement § 68 Introductory Note (2000). This
privilege generally provides that "neither a client nor the client's lawyer may
be required to testify or otherwise to provide evidence that reveals the content
of confidential communications between client and lawyer in the course of seeking
or rendering legal advice or other legal assistance." Id.; see Uniform Rules of
Evidence Rule 502 (2005).
When otherwise applicable, the privilege extends to confidential communications
to and from agents of the lawyer and to and from independent contractors who have
a contractual relationship with the lawyer to assist in representation of the client.
United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961); In re Grand Jury Subpoenas,
179 F. Supp. 2d 270, 283 (S.D.N.Y. 2001); Compulit v. Banctec, Inc., 177 F.R.D.
410, 412 (W.D. Mich. 1997).
A lawyer may disclose privileged communications to other office lawyers and with
appropriate nonlawyer staff—secretaries, file clerks, computer operators, investigators,
office managers, paralegal assistants, telecommunications personnel, and similar
law office assistants . . . The privilege also extends to communications to and
from the client that are disclosed to independent contractors retained by the lawyer,
such as an accountant or physician retained by the lawyer to assist in providing
legal services to the client and not for the purpose of testifying.
Restatement § 70 cmt. G.
In sum, confidential communications between the requesting attorney and LRC for
the purpose of rendering legal services to the requesting attorney's client are
protected by the attorney-client privilege. See Revised Uniform Rules of Evidence,
Rules 502(a)(4) and 502(b) (2005); P. Rice, 2 Attorney-Client Privilege in the United
States § 5.5 (1999).
The Workproduct Doctrine
In appropriate circumstances, the workproduct doctrine is also applicable to protect
documents prepared by LRC for the requesting attorney. As codified in the Federal
Rules of Civil Procedure, the doctrine protects from discovery by one party "documents
. . . prepared in anticipation of litigation or for trial by or for another party
or by or for that other party's representative (including the other party's attorney,
consultant, surety, indemnitor, insurer or agent)." Fed. R. Civ. P. 26(b)(3) (2009).
See United States v. Nobles , 422 U.S. 225, 238-39 (1975) (recognizing doctrine
protects materials prepared on behalf of attorney as well as those prepared by attorney
Although some workproduct documents prepared in anticipation of litigation must
still be produced to an adverse party if that party demonstrates that they are substantially
needed and cannot otherwise be obtained, production of documents or tangible things
that would reveal mental impressions and legal theories are not required. "If the
court orders discovery of those materials, it must protect against disclosure of
the mental impressions, conclusions, opinions, or legal theories of a party's attorney
or other representative concerning the litigation." Fed. R. Civ. P. 26(b)(3) (2009).
Then, when an attorney asks LRC to undertake a research project in anticipation
of or in connection with litigation, the workproduct generated is protected by the
workproduct doctrine. Nobles, 422 U.S. at 239–40 (holding that the workproduct rule
protects material prepared by agents from an attorney as well as those materials
prepared by the attorney himself).
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