LegalResearch.com’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) the workproduct doctrine.
All of LegalResearch.com’s Research Attorneys are obligated 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, LegalResearch.com’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 LegalResearch.com.”
This contractual obligation of confidentiality is reiterated and reinforced in LegalResearch.com ‘s Procedures and Policy Manual which expressly provides, “Confidentiality must be strictly observed. No research project should ever be discussed with people who do not work for LegalResearch.com.”
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 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 LegalResearch.com’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 LegalResearch.com 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 (emphasis added). See also Fireman’s Fund Ins. Co. v. Superior Court, 196 Cal. App. 4th 1263, 1274 (2011) (legal opinions may be shared with a nonattorney agent retained by the attorney to assist with his or her representation of a client without losing their confidential status); U.S. v. Singhal, No. 10-108 (D.D.C. Feb. 2, 2012) (confidential communications disclosed to a non-attorney third party remain confidential as long as the third party is serving an “interpretive function” to aid the lawyer in helping the client).
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 (1974).
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); Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 901 N.E.2d 1185 (2009); Great Lakes Transportation Holding LLC, v. Yellow Cab Service Corp., No. 10-80241 (S.D. Fla. Nov. 29, 2011); Roe v. Catholic Health Initiatives Colorado, No. 11-2179 Civil (D. Colo. Apr. 11, 2012); Banco do Brasil, SA v. 275 Washington Street Corp., No. 09-11343 (D. Mass. Apr. 12, 2012); Chevron Corp. v. Donziger, No. 11-691 (S.D.N.Y. May 7, 2013).
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 (emphasis added).
Courts have held that attorney-client communications may be protected by privilege if disclosed to another party when the communication with the third party is necessary for the client to obtain informed legal advice. Am. Zurich Ins. Co. v. Montana Thirteenth Judicial Court, 2012 MT 61, 280 P.3d 240, 245 (2012), citing Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414 (3rd Cir. 1991). These third parties may be co-litigants, or other professionals assisting the attorney in representing the client. Am. Zurich Ins. Co., supra. If a third party is providing assistance in developing litigation and legal strategies in a manner similar to multiple attorneys working on a case at a law firm, the attorney-client privilege extends to those consultants. Goldstein v. Federal Deposit Ins. Corp., No. 13-306 (D.D.C. May 23, 2013). In sum, confidential communications between the requesting attorney and LegalResearch.com 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); David M. Greenwald, et al., Testimonial Privileges § 1:28 (2012 ed.).
The Workproduct Doctrine
In appropriate circumstances, the workproduct doctrine is also applicable to protect documents prepared by LegalResearch.com for the requesting attorney. As codified in the Federal Rules of Civil Procedure, the doctrine protects from discovery by one party “documents . . . otherwise discoverable . . . 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) (1998). 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 himself).
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. “In ordering discovery of such materials when the required showing has been made the court shall protect against the mental impressions, conclusions, opinions, or legal theories of an attorney or other representation of a party concerning the litigation.” Fed. R. Civ. P. 26(b)(3) (1998) (emphasis added).
Under the current approach for determining whether a document is protected as workproduct, courts will look at on the motivation behind the document’s preparation, rather than focusing on the person who prepared it. Edith Galan Epstein, The Attorney-Client Privilege and the Work Product Doctrine 916 (5th ed. 2007). Then, when an attorney asks LegalResearch.com 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).