Mass. R. Evid. 502
Mass. Guid. Evid. 502
Introduction. The Supreme Judicial Court has defined the attorney-client privilege as follows:
"The classic formulation of the attorney-client privilege . . . is found in 8 J. Wigmore, Evidence § 2292 (McNaughton rev. ed. 1961): (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. The purpose of the privilege is to enable clients to make full disclosure to legal counsel of all relevant facts . . . so that counsel may render fully informed legal advice with the goal of promot[ing] broader public interests in the observance of law and administration of justice." (Quotations and citations omitted.)
Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 303 (2009).
"The existence of the privilege and the applicability of any exception to the privilege is a question of fact for the judge. The burden of proving that the attorney-client privilege applies to a communication rests on the party asserting the privilege. This burden extends not only to a showing of the existence of the attorney-client relationship but to all other elements involved in the determination of the existence of the privilege, including (1) the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived." (Citations omitted.)
Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 421 (1997). This privilege is narrowly construed and not self-executing. See Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 122 (2021); District Attorney for the Plymouth Dist. v. Board of Selectmen of Middleborough, 395 Mass. 629, 633-634 (1985).
Subsection (a)(1). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(1), reflects Massachusetts practice. The term "client" includes more than simply natural persons. See Mass. R. Prof. C. 1.13 (2015). See also Matter of a Grand Jury Investigation, 437 Mass. 340, 351-352 (2002); Bays v. Theran, 418 Mass. 685, 690 (1994).
An attorney-client relationship may be expressly created or implied as a matter of law. Cesso v. Todd, 92 Mass. App. Ct. 131, 135 (2017). An attorney-client relationship may be implied "when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance." DeVaux v. American Home Assur. Co., 387 Mass. 814, 817-818 (1983), quoting Kurtenback v. TeKippe, 260 N.W.2d 53 (Iowa 1977). See Cesso, 92 Mass. App. Ct. at 135. The attorney-client privilege survives the death of the client. Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 483 (1990).
Subsection (a)(2). This subsection is derived from Ellingsgard v. Silver, 352 Mass. 34, 40 (1967) ("The attorney-client privilege may extend to communications from the client's agent or employee to the attorney."). The Supreme Judicial Court has yet to determine the scope of the privilege when the client is an organization such as a corporation. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation, 424 Mass. 430, 457 n.26 (1997) (attorney-client privilege not automatically extended to all employees of corporation who communicate with corporation's attorney). Cf. Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347, 357 (2002) (a lawyer is barred from ex parte contact with employees of a corporation, under the rule of professional responsibility prohibiting a lawyer from communicating with a represented party in the absence of that party's counsel, only as to employees who exercise managerial responsibility with regard to the subject of pending litigation, those alleged to have committed wrongful actions at issue in the litigation, and employees with authority to make decisions about the course of litigation or having management authority sufficient to speak for and bind the corporation).
Subsection (a)(3). This subsection is derived from Barnes v. Harris, 61 Mass. 576, 576-577 (1851).
Subsection (a)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(a)(4), reflects Massachusetts practice. In Foster v. Hall, 29 Mass. 89 (1831), the court explained that the attorney-client privilege applied to communications to members of the legal profession, and also to those who "facilitate the communication between attorney and client, as interpreters, agents, and attorneys' clerks" (citations omitted). Id. at 94.
Subsection (a)(5). This subsection is derived from Commissioner of Revenue v. Comcast Corp., 453 Mass. 293 (2009), and DaRosa v. City of New Bedford, 471 Mass. 446 (2015). The privilege "only protects communications between the attorney and the client about [underlying] factual information, not the facts themselves." Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 123 (2021). In general, "information contained within a communication need not itself be confidential for the communication to be deemed privileged; rather the communication must be made in confi-dence-that is, with the expectation that the communication will not be divulged." Comcast Corp., 453 Mass. at 305. Thus, "[c]ommunications between an attorney and his client are not privileged, though made privately, if it is understood that the information communicated is to be conveyed to others." Peters v. Wallach, 366 Mass. 622, 627 (1975).
The Supreme Judicial Court, however, has recognized a derivative attorney-client privilege that "can shield communications of a third party employed to facilitate communication between the attorney and client and thereby assist the attorney in rendering legal advice to the client." Comcast Corp., 453 Mass. at 306, citing United States v. Kovel, 296 F.2d 918, 921-922 (2d Cir. 1961). See also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 616 (2007). "The purpose of the derivative attorney-client privilege is to maintain the [attorney-client] privilege for communications between the attorney and the client in circumstances where a third party's presence would otherwise constitute a waiver of the privilege." DaRosa, 471 Mass. at 463-464.
But the derivative attorney-client privilege is "sharply limited in scope." DaRosa, 471 Mass. at 463. "It attaches only when the third party's role is to clarify or facilitate communications between attorney and client, as where the third party functions as a translator between the client and the attorney, and is therefore nearly indispensable or serves some specialized purpose in facilitating the attorney-client communications" (quotations, citations, and brackets omitted). Id. "The privilege does not apply simply because 'an attorney's ability to represent a client is improved, even substantially, by the assistance' of an expert." Id., quoting Comcast Corp., 453 Mass. at 307.
"In short, the derivative attorney-client privilege protects otherwise privileged communications between an attorney and client despite the presence of a third party where, without the assistance of the third party, what the client says would be 'Greek' to the attorney, either because the client is actually speaking in Greek or because the information provided by the client is so technical in nature that it might as well be spoken in Greek if there were not an expert to interpret it for the attorney."
DaRosa, 471 Mass. at 463 (concluding that communications at issue failed to meet this test because, even if third party's analysis were "critical" to attorney's ability to effectively represent his client, third party was "translating" public record technical data, "not confidential communications from the client"). See also Comcast Corp., 453 Mass. at 309 (concluding that derivative attorney-client privilege did not apply because attorney's "purpose in consulting [third party] was to obtain advice about Massachusetts tax law, not to assist [attorney] with comprehending his client's information.").
Subsection (b). Subsections (b)(1), (2), (4), and (5) are derived from Proposed Mass. R. Evid. 502(b), which was cited with approval in Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 115 (1997) ("The attorney-client privilege applies only when the client's communication was for the purpose of facilitating the rendition of legal services."). See McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 191 n.21 (2012) (privilege applies to confidential communications by attorney as well as client). Subsection (b)(3) is derived from Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 614-617 (2007), where the Supreme Judicial Court recognized the "common interest doctrine" and adopted the principle of the Restatement (Third) of the Law Governing Lawyers § 76(1) (2000), which states as follows:
"If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged . . . that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication."
This principle expresses the component of the doctrine known as "joint defense agreements," "joint defense privilege," or "joint prosecution privilege." See also Proposed Mass. R. Evid. 502(b)(3). In Hanover Ins. Co., 449 Mass. at 618, the Supreme Judicial Court explained that the common-interest doctrine depends on communications that are protected by the attorney-client privilege and is simply an exception to the waiver of the privilege. Thus, there is no requirement of a writing. Id. at 618. The court also explained that the legal interests of the parties do not have to be identical in order for the common-interest doctrine to apply. Parties will be deemed to have a common interest when they "share a sufficiently similar interest and attempt to promote that interest by sharing a privileged communication" (quotation and citation omitted). Id. at 619. Finally, the Supreme Judicial Court also noted that Section 76(2) of the Restatement is consistent with Massachusetts law. Id. at 614 n.4. Section 76(2) states that "[u]nless the clients have agreed otherwise, a communication described in Subsection (1) is not privileged as between clients described in Subsection (1) in a subsequent adverse proceeding between them." Id., quoting Restatement (Third) of the Law Governing Lawyers § 76(2) (2000).
Subsection (c). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(c), reflects Massachusetts practice. See District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 172-173 (1994). In the case of litigation between a corporation and its shareholders, the corporation may assert the privilege against a shareholder whose interests are opposed to the corporation's interests, because the privilege belongs to the corporation and not to the individual shareholders. See Chambers v. Gold Medal Bakery, Inc., 464 Mass. 383, 392 (2013); Clair v. Clair, 464 Mass. 205, 218 (2013). A law firm may claim the attorney-client privilege for communications between law firm attorneys and the firm's in-house counsel against a client who threatens a malpractice claim against the firm if (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel; (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter; (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client; and (4) the communications are made in confidence and kept confidential. RFF Family Partnership LLP v. Burns & Levinson LLP, 465 Mass. 702, 703 (2013).
Subsection (d)(1). This subsection is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(1), which the Supreme Judicial Court described as an adequate definition of the crime-fraud exception to the attorney-client privilege. Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 112 (1997). See also Mass. R. Prof. C. 1.6(b)(3) (2015). "Th[e] exception applies only if the client or prospective client seeks advice or assistance in furtherance of criminal conduct." Purcell, 424 Mass. at 115. See Matter of a Grand Jury Investigation, 453 Mass. 453, 459 (2009) ("a client's communications to his lawyer threatening harm are privileged unless the crime-fraud exception applies").
Subsection (d)(2). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(2), reflects Massachusetts practice. See Phillips v. Chase, 201 Mass. 444, 449 (1909).
Subsection (d)(3). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(3), reflects Massachusetts practice. See Mass. R. Prof. C. 1.6(b) (2015); GTE Prods. Corp. v. Stewart, 421 Mass. 22, 32 (1995) (there are limits to the extent to which in-house counsel may disclose client confidences in pursuing a claim of wrongful discharge); Commonwealth v. Brito, 390 Mass. 112, 119 (1983) ("[T]rial counsel's obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel.").
Subsection (d)(4). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(4), reflects Massachusetts practice. See Foster v. Hall, 29 Mass. 89, 98-99 (1831).
Subsection (d)(5). This subsection, which is taken nearly verbatim from Proposed Mass. R. Evid. 502(d)(5), reflects Massachusetts practice. See Beacon Oil Co. v. Perelis, 263 Mass. 288, 293 (1928); Thompson v. Cashman, 181 Mass. 36, 37 (1902).
Subsection (d)(6). In Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 450 (2007), the Supreme Judicial Court held that "confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege." Thus, the Supreme Judicial Court rejected the proposed limitation on the attorney-client privilege for public employees and governmental entities found in Proposed Mass. R. Evid. 502(d)(6). Id. at 452 n.12. Additionally, the Supreme Judicial Court held that its decision in General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801-806 (1999), which states that under the Massachusetts public records statute, G. L. c. 66, § 10, documents held by a State agency are not protected from disclosure under the attorney work-product doctrine, but rather enjoy the more limited protection of the so-called "deliberative process" exemption found in G. L. c. 4, § 7, Twenty-sixth (d), did not limit the applicability of the attorney-client privilege as to written communications between government officials and entities and their counsel.
"With the attorney-client privilege, the principal focus is on encouraging the client to communicate freely with the attorney; with work-product, it is on encouraging careful and thorough preparation by the attorney. As a result, there are differences in the scope of the protection. For example, the privilege extends only to client communications, while work product encompasses much that has its source outside client communications. At the same time, the privilege extends to clientattorney communications whenever any sort of legal services are being provided, but the work-product protection is limited to preparations for litigation."
Suffolk Constr. Co., 449 Mass. at 456, quoting E.S. Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 477 (4th ed. 2001).
Work-Product Doctrine. The work-product doctrine is not an evidentiary privilege, but rather a discovery rule that affords qualified protection to lawyer and nonlawyer representatives, "protecting from discovery documents prepared by a party's representative 'in anticipation of litigation.'" Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 314 (2009), quoting Mass. R. Civ. P. 26(b)(3).
"The work product doctrine, drawn from the well-known case of Hickman v. Taylor, 329 U.S. 495 (1947), is intended to enhance the vitality of an adversary system of litigation by insulating counsel's work from intrusions, inferences, or borrowings by other parties as he prepares for the contest." Ward v. Peabody, 380 Mass. 805, 817 (1980). It is codified in Massachusetts and applicable in both civil and criminal cases. See Mass. R. Civ. P. 26(b)(3); Mass. R. Crim. P. 14(a)(5). The protections afforded by the work-product doctrine can be waived by the attorney. See Adoption of Sherry, 435 Mass. 331, 336 (2001). See also Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 423 (1997) (no waiver when disclosure of work-product is due to inadvertence and adequate steps were taken to maintain the confidentiality of the information).
Anticipation of Litigation. Initially, the burden is on the party asserting the work-product doctrine to demonstrate that the document was prepared in anticipation of litigation. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 315 (2009).
In Comcast Corp., the Supreme Judicial Court adopted a rule shielding documents prepared "'because of' existing or expected litigation," even if they were not prepared to assist in litigation. Id. at 316. The court explained that "[t]he 'because of' test 'appropriately focuses on both what should be eligible for the [r]ule's protection and what should not.'" Id. at 316-317, quoting United States v. Adlman, 134 F.3d 1194, 1203 (2d Cir. 1998). Thus, the Supreme Judicial Court found that "a document is within the scope of the rule if, 'in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared because of the prospect of litigation.'" Id. at 317, quoting Adlman, 134 F.3d at 1202. Anticipation of litigation need not be the primary motivation for the preparation of a document for it to be considered work product, but a document that would have been prepared regardless of prospective litigation is not protected by the work-product doctrine. See Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 127, 130 (2021). "[A] litigation analysis prepared so that a party can make an informed business decision is afforded the protections of the work-product doctrine" for example, memos prepared for counsel by the accountant that were not protected by attorney-client privilege fall within the scope of the work-product doctrine. Comcast Corp., 453 Mass. at 318.
Determining Fact Versus Opinion Work Product. "If the work product doctrine applies, the court must determine what type of work product is at issue." Facebook, Inc., 487 Mass. at 127. Opinion work product, which receives the greatest protection, is "work product that conveys the 'mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.'" Id., quoting Mass. R. Civ. P. 26(b)(3). A document containing only facts on its face may still qualify as opinion work product if the "focus, selection, or arrangement of the facts . . . reflect[s] the attorney's thought process in some meaningful way" (quotation omitted). Id. at 128. All nonopinion work product is referred to as fact work product. Id.
Burdens of Proof for Fact Versus Opinion Work Product. Fact work product is discoverable "upon a showing that the party seeking discovery has substantial need of the materials . . . and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Facebook, Inc., 487 Mass. at 128, quoting Mass. R. Civ. P. 26(b)(3). "A substantial need exists where the fact information is relevant and the requesting party cannot reasonably obtain the information or its substantial equivalent elsewhere," and where special circumstances excuse the party's failure to obtain the materials sought itself. Id. at 136. "Undue hardship may exist where shielding fact work product would impose extraordinary expense on the requesting party." Id. at 138-139 (concluding that the attorney general demonstrated undue hardship where she would have to "expend an exorbitant amount of public resources and conduct a multiyear investigation to obtain information that Facebook already ha[d] in its possession").
Unlike fact work product, opinion work product "is only discoverable, if at all, in rare or extremely unusual circumstances" (quotations omitted). Facebook, Inc., 487 Mass. at 128. The party seeking the materials "must make, at a minimum, a 'far stronger showing of necessity and unavailability by other means.'" Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 315 (2009), quoting Upjohn Co. v. United States, 449 U.S. 383, 402 (1981). Opinion work product relating to a different case is nonetheless entitled to work-product protection, although it may require a lesser showing to overcome the work-product rule. McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 198 n.37 (2012).
A judge can order production of a document containing both fact and opinion work product if the opinion parts can be redacted or otherwise removed. See Facebook, Inc., 487 Mass. at 128-129 & n.18.
For a discussion of the work-product doctrine in the G. L. c. 176D insurance settlement context, see Sanchez v. Witham, 2003 Mass. App. Div. 48.
Scope of the Work-Product Doctrine in the Public Records Context. In DaRosa v. City of New Bedford, 471 Mass. 446 (2015), the Supreme Judicial Court addressed the work-product doctrine as it applies to public records:
"[O]pinion work product that was prepared in anticipation of litigation or for trial by or for a party or party representative is protected from discovery to the extent provided under Mass. R. Civ. P. 26(b)(3), even where the opinion work product has been made or received by a State or local government employee. So is fact work product that is prepared in anticipation of litigation or for trial where it is not a reasonably completed study or report, or, if it is reasonably completed, is interwoven with opinions or analysis leading to opinions. Other fact work product that has been made or received by a State or local government employee must be disclosed in discovery, even if it would be protected from discovery under rule 26(b)(3) were it not a public record."
DaRosa, 471 Mass. at 462. If any work product is not a "public record" because it falls within the exemption found in G. L. c. 4, § 7, Twenty-sixth (d) (or any another exemption), the work product may not be ordered to be produced in discovery unless the third-party defendants have made the required showing of need to justify disclosure of this work product under Mass. R. Civ. P. 26(b)(3). Id. at 464.
Waiver. For issues relating to waiver, see Section 523, Waiver of Privilege.