Courts Explore Wrongful Conduct’s Effect on Privilege and Work Product Protection

August 17, 2016

Apart from the crime-fraud exception, lawyer and client misconduct might affect privilege and work product claims in more subtle ways.

In Scranton Products, Inc. v. Bobrick Washroom Equipment, Inc., No. 3:14-CV-00853, 2016 U.S. Dist. LEXIS 72802 (M.D. Pa. June 2, 2016), the court rejected defendant’s argument that the privilege could not protect plaintiff’s communications with its general counsel — who was apparently committing the unauthorized practice of law in Pennsylvania. The court noted that the general counsel was licensed to practice in another jurisdiction, so “the fact that [the general counsel] ‘is not admitted to practice law in Pennsylvania does not mean that [the corporate client’s] communications with him are not protected by the attorney-client privilege.'” Id. at *17 (internal citation omitted). Six days later, the court in Halley v. Oklahoma ex rel. Oklahoma State Dep’t of Human Services, Case No. 14-CV-562-JHP, 2016 U.S. Dist. LEXIS 74567 (E.D. Okla. June 8, 2016) found that plaintiff’s investigator had illegally conducted interviews in Oklahoma. Because the investigator was “unlicensed to act as a private investigator in Oklahoma,” the court concluded that “such illegally-collected information does not obtain the benefit of work-product protection.” Id. at *5.

Every court recognizes privilege protection for lawyers licensed somewhere, even if they are engaged in the unauthorized practice of law somewhere else. But most if not all courts refuse to extend work product protection to illegally obtained evidence.