Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Louisiana |
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(United States)
Firm
Jones Walker LLP
Contributors
Edward Bergin |
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| Is the ACP recognized in your jurisdiction? | Yes. See Louisiana Code of Evidence Articles 506-508. Article 506 defines and sets the parameters of the privilege. Louisiana Code of Evidence Article 507 addresses subpoenas addressed to lawyers or their representatives in criminal cases. Louisiana Code of Evidence Article 508 addresses subpoenas addressed to lawyers or their representatives in civil cases. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Not applicable. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | Yes. There are distinctions with respect to subpoenas directed to lawyers and their representatives. Louisiana Code of Evidence Article 507 addresses subpoenas addressed to lawyers or their representatives in criminal cases. Louisiana Code of Evidence Article 508 addresses subpoenas addressed to lawyers or their representatives in civil cases. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Article 506(B) of the Louisiana Code of Evidence recognizes that the privilege extends to communications involving “representatives of the client.” The article does not define that phrase. However, the Official Revision Comments to Article 506 expressly refer to Upjohn in comments (d) and (f). The Louisiana Supreme Court has cited Upjohn with approval. E.g., Turner v. Lowery, 703 So. 2d 1, 97-2533 (La. 10/29/97). |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | The answer is not clear. Official Revision Comment (d) to Louisiana Code of Evidence Article 506 states; “The definition of “lawyer” does not specifically address the matter of “house counsel”. By not specifically excluding “house counsel” from the definition, this Article does not automatically preclude the application of the attorney-client privilege to communications between an attorney and the attorney’s employer. The availability of a privilege in this context will depend upon the general principles set forth in this Article. See Upjohn Co. v. United States, 449 U.S. 383 (1981).” |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes. See response to "Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?" above. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes, in-house counsel is allowed to be active members of the Louisiana bar. |
| Is the common interest doctrine recognized in your jurisdiction? | Yes, the common interest doctrine is recognized in Louisiana. |
| How is the doctrine articulated in your jurisdiction? | Article 506 (B) (3) of the Louisiana Code of Evidence extends the attorney-client privilege to communications “By the client or his lawyer, or a representative of either, to a lawyer, or representative of a lawyer, who represents another party concerning a matter of common interest.” However, Article 506 (C) (5) excludes from the scope of the privilege, any communication “Which is relevant to a matter of common interest between or among two or more clients if the communication was made by any of them or their representative to a lawyer or his representative retained or consulted in common when subsequently offered by one client against the other in a civil action.” |
| Must a common interest agreement be in writing? | No. There is no express requirement in Article 506 (B) (3) that there be a written common interest agreement in order for the privilege to apply. No reported Louisiana decision has imposed a requirement that there must be a written common interest agreement for the common interest privilege to apply. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Litigation funding exists in Louisiana. Depending on the litigation funding arrangement, several provisions of Rule 1.8 of the Rules of Professional Conduct could apply, including Rule 1,8 (e) governing financial assistance to a client; and Rule 1,8 (f) governing a third party paying the lawyers’ fees. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No reported Louisiana decision has addressed whether the attorney-client privilege, the common interest privilege, or the work product privilege applies to communications with a litigation funder. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes, the crime-fraud exception is recognized in Louisiana. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Article 506 (C) (1) provides: “There is no privilege under this Article as to a communication: (1)(a) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client or his representative knew or reasonably should have known to be a crime or fraud.” |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes. Article 1424 of the Louisiana Code of Civil Procedure addresses the work product privilege with respect to civil cases. Articles 723 and 728 of the Louisiana Code of Criminal Procedure address the work product privilege with respect to criminal cases. Article 509 of the Louisiana Code of Evidence provides: “Nothing in this Chapter shall be construed as derogating from the protection afforded by the rules relating to work product.” |
| What are the elements of the protection in your jurisdiction? | See the authorities cited in the preceding response to "Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?" |
| Does your jurisdiction recognize an accountant-client privilege? | Yes. Article 515 of the Louisiana Code of Evidence recognizes and codifies the accountant-client privilege. Louisiana Code of Evidence Article 516 addresses subpoenas addressed to accountants or their representatives in criminal cases. Louisiana Code of Evidence Article 517 addresses subpoenas addressed to lawyers or their representatives in civil, juvenile and administrative cases. |
| Does your jurisdiction recognize a mediation privilege? | Yes. See La. R.S. 9:4112 regarding confidentiality of mediation proceedings. Section A of this statute provides: “Except as provided in this Section, all oral and written communications and records made during mediation, whether or not conducted under this Chapter and whether before or after the institution of formal judicial proceedings, are not subject to disclosure, and may not be used as evidence in any judicial or administrative proceeding.” |
| Does your jurisdiction recognize a settlement negotiation privilege? | There is no settlement negotiation privilege per se. Article 408 of the Louisiana Code of Evidence makes settlement offers and acceptances thereof inadmissible to prove liability for or invalidity of a claim. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes. See Louisiana Code of Evidence Articles 506-508. Article 506 defines and sets the parameters of the privilege. Louisiana Code of Evidence Article 507 addresses subpoenas addressed to lawyers or their representatives in criminal cases. Louisiana Code of Evidence Article 508 addresses subpoenas addressed to lawyers or their representatives in civil cases.
Not applicable.
Yes. There are distinctions with respect to subpoenas directed to lawyers and their representatives. Louisiana Code of Evidence Article 507 addresses subpoenas addressed to lawyers or their representatives in criminal cases. Louisiana Code of Evidence Article 508 addresses subpoenas addressed to lawyers or their representatives in civil cases.
Article 506(B) of the Louisiana Code of Evidence recognizes that the privilege extends to communications involving “representatives of the client.” The article does not define that phrase. However, the Official Revision Comments to Article 506 expressly refer to Upjohn in comments (d) and (f). The Louisiana Supreme Court has cited Upjohn with approval. E.g., Turner v. Lowery, 703 So. 2d 1, 97-2533 (La. 10/29/97).
The answer is not clear. Official Revision Comment (d) to Louisiana Code of Evidence Article 506 states;
“The definition of “lawyer” does not specifically address the matter of “house counsel”. By not specifically excluding “house counsel” from the definition, this Article does not automatically preclude the application of the attorney-client privilege to communications between an attorney and the attorney’s employer. The availability of a privilege in this context will depend upon the general principles set forth in this Article. See Upjohn Co. v. United States, 449 U.S. 383 (1981).”
Yes. See response to "Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?" above.
Yes, in-house counsel is allowed to be active members of the Louisiana bar.
Yes, the common interest doctrine is recognized in Louisiana.
Article 506 (B) (3) of the Louisiana Code of Evidence extends the attorney-client privilege to communications “By the client or his lawyer, or a representative of either, to a lawyer, or representative of a lawyer, who represents another party concerning a matter of common interest.” However, Article 506 (C) (5) excludes from the scope of the privilege, any communication “Which is relevant to a matter of common interest between or among two or more clients if the communication was made by any of them or their representative to a lawyer or his representative retained or consulted in common when subsequently offered by one client against the other in a civil action.”
No. There is no express requirement in Article 506 (B) (3) that there be a written common interest agreement in order for the privilege to apply. No reported Louisiana decision has imposed a requirement that there must be a written common interest agreement for the common interest privilege to apply.
Litigation funding exists in Louisiana. Depending on the litigation funding arrangement, several provisions of Rule 1.8 of the Rules of Professional Conduct could apply, including Rule 1,8 (e) governing financial assistance to a client; and Rule 1,8 (f) governing a third party paying the lawyers’ fees.
No reported Louisiana decision has addressed whether the attorney-client privilege, the common interest privilege, or the work product privilege applies to communications with a litigation funder.
Yes, the crime-fraud exception is recognized in Louisiana.
Article 506 (C) (1) provides:
“There is no privilege under this Article as to a communication: (1)(a) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client or his representative knew or reasonably should have known to be a crime or fraud.”
Yes. Article 1424 of the Louisiana Code of Civil Procedure addresses the work product privilege with respect to civil cases. Articles 723 and 728 of the Louisiana Code of Criminal Procedure address the work product privilege with respect to criminal cases. Article 509 of the Louisiana Code of Evidence provides: “Nothing in this Chapter shall be construed as derogating from the protection afforded by the rules relating to work product.”
See the authorities cited in the preceding response to "Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?"
Yes. Article 515 of the Louisiana Code of Evidence recognizes and codifies the accountant-client privilege. Louisiana Code of Evidence Article 516 addresses subpoenas addressed to accountants or their representatives in criminal cases. Louisiana Code of Evidence Article 517 addresses subpoenas addressed to lawyers or their representatives in civil, juvenile and administrative cases.
Yes. See La. R.S. 9:4112 regarding confidentiality of mediation proceedings. Section A of this statute provides: “Except as provided in this Section, all oral and written communications and records made during mediation, whether or not conducted under this Chapter and whether before or after the institution of formal judicial proceedings, are not subject to disclosure, and may not be used as evidence in any judicial or administrative proceeding.”
There is no settlement negotiation privilege per se. Article 408 of the Louisiana Code of Evidence makes settlement offers and acceptances thereof inadmissible to prove liability for or invalidity of a claim.