Yes. Along with common law decisions, Tennessee has codified the attorney-client privilege as follows:

No attorney, solicitor or counselor shall be permitted, in giving testimony against a client or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person during the pendency of the suit, before or afterward, to the person's injury.

Tenn. Code Ann. § 23-3-105. See also Tennessee Rule of Evidence 501; Dialysis Clinic, Inc. v. Medley, 567 S.W.3d 314 (Tenn. 2019).

N/A

In Tennessee, the attorney-client privilege protects communications between clients and their attorneys from compulsory disclosure in both civil and criminal proceedings. However, the privilege belongs to the client and can be waived, and opposing parties, including government authorities, can require disclosure in limited circumstances. For example, the privileged information can be subject to compulsory disclosure if the “client communicates otherwise privileged information in the presence of others or to third parties.” Gibson v. Richardson, No. W2002-03027-COA-R7CV, 2003 WL 135054, at *3 (Tenn. Ct. App. Jan. 17, 2003). In criminal proceedings, the privilege can also be waived if the client attacks the competency of the client’s attorney. Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App. 1992). Also, the privilege can be waived “any time a party testifies about purported communications between him or herself and the attorney, but seeks to prevent the opposing party's use of the attorney as a witness.” Id. Thus, an implied waiver of the privilege exists in criminal proceedings when the asserting party puts the protected information at issue by making it relevant to the case and “upon the state's showing that the information possessed by the trial attorney was vital to its defense.” Id. at 81. Moreover, Tennessee’s rules of professional conduct mandate that lawyers shall reveal confidential client information to “prevent reasonably certain death or substantial bodily harm,” when candor to the court or third parties requires it under limited circumstances and scope, or when ordered by a court after the attorney asserts the privilege on behalf of the client. See Rules 1.6(c), 3.3, and 4.1 of Tennessee’s Supreme Court Rule 8.

Finally, the burden is on the party asserting the privilege to show that it applies to the information sought to be protected. In Tennessee, the privilege “is not absolute and it does not protect all communications between an attorney and a client.” State ex rel. Flowers v. Tennessee Trucking Ass'n Self Ins. Grp. Tr., 209 S.W.3d 602, 616 (Tenn. Ct. App. 2006). To apply, “the communication must involve the subject matter of the representation and must be made with the intention that the communication will be kept confidential.” Id. Once applied, the “privilege applies not only to the client's communications but also to the attorney's communications to his or her client when the attorney's communications are specifically based on the client's confidential communications or when disclosing the attorney's communications would, directly or indirectly, reveal the substance of the client's confidential communications.” Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 213 (Tenn. Ct. App. 2002).

Tennessee courts follow an expanded Upjohn type of an approach when deciding attorney-client privilege issues in the corporate context. See Dialysis Clinic, Inc. v. Medley, 567 S.W.3d 314, 324 (Tenn. 2019) (extending the Upjohn approach by adopting the “functional equivalent analysis” test of whether a nonemployee is the functional equivalent of an entity’s employee holding that “on a case-by-case, communication-by-communication basis, the court should determine whether the communication involves the subject matter of counsel’s representation of the entity and whether the communication was made with the intent that the communication be kept confidential”).

Generally, in-house counsel has the same burden as outside counsel to establish that the privilege applies. However, in-house counsel must also be aware of the possible various business roles of her job that can impact the application of the privilege. Thus, in-house counsel should ensure that the purpose of any privileged communication with an employee is to secure legal advice from counsel, the communication involves the subject matter of counsel’s representation of the entity, and the communication must be kept confidential and the employee made aware of the intent to keep it confidential. See Dialysis Clinic, Inc. v. Medley, 567 S.W.3d 314, 324 (Tenn. 2019). As a result, a heightened scrutiny will be applied to in-house communications with corporate employees to ensure that a legal role, as opposed to a business role, was being assumed when the confidential communication was made.

Additionally, Tennessee courts allow in-house counsel to have privileged communications with nonemployees under limited circumstances. See Dialysis Clinic, Inc., 567 S.W.3d at 324 (applying the privilege to in-house counsel’s communications with a nonemployee, using the following non-exclusive factors: “whether the nonemployee performs a specific role on behalf of the entity; whether the nonemployee acts as a representative of the entity in interactions with other people or other entities; whether, as a result of performing its role, the nonemployee possesses information no one else has; whether the nonemployee is authorized by the entity to communicate with its attorneys on matters within the nonemployee’s scope of work to facilitate the attorney’s representation of the entity; and whether the nonemployee’s communications with the entity’s attorneys are treated as confidential”).

Alternatively, in-house counsel can argue a communication should be considered confidential research, development, or commercial information of the entity if the communication qualifies and certain steps are taken to limit internal access to the information, and the entity seeks a protective order under Tennessee Rule of Civil Procedure 26.03 to prevent or limit disclosure in subsequent litigation.

N/A

N/A

Yes

In Tennessee, the common interest privilege permits the participants in a joint defense to communicate among themselves and with their attorneys on matters of common legal interest for the purpose of coordinating their joint legal strategy. See Boyd v. Comdata Network, Inc., 88 S.W.3d 203 (Tenn. Ct. App. 2002). However, “[t]he cooperation required to invoke the common interest privilege must be more than cooperation for business purposes or to address a common problem. The cooperation must be in the furtherance of a joint strategy for actual or anticipated litigation.” Id. at 215 n.16.

For the common interest privilege to apply in Tennessee, the proponent must demonstrate: (1) that the communications were given in confidence, (2) that the otherwise privileged information was disclosed due to actual or anticipated litigation, (3) that the disclosure was made for the purpose of furthering a common interest in the actual or anticipated litigation and intended and reasonably believed to be part of an on-going and joint effort to set up a common legal strategy, (4) that the disclosure was made in a manner not inconsistent with maintaining its confidentiality against adverse parties, and (5) that the person disclosing the information has not otherwise waived the attorney-client privilege for that information. See Boyd, 88 S.W.3d at 214-15.

No, but a joint defense agreement makes it easier for Tennessee courts to determine, in-camera, whether the parties intended to participate in a joint defense. See Boyd, 88 S.W.3d at 217. Additionally, a joint defense agreement helps show compliance with Rule 4.2 of Tennessee’s Supreme Court Rule 8, which requires a lawyer to obtain consent from the lawyer representing another party before communicating with that other party regarding the subject matter in dispute.

The Tennessee Litigation Financing Consumer Protection Act regulates litigation funding in the State of Tennessee. See Tenn. Code Ann. § 47-16-101, et. seq. Additionally, Tennessee’s Rules of Professional Conduct have several provisions that potentially impact litigation funding. See Rules 1.6, 1.7, 1.8, and 5.4 of Tennessee’s Supreme Court Rule 8.

No

Yes

Tennessee’s Rules of Professional Conduct provide the applicable rules, scope, and limitations of Tennessee’s crime-fraud exception to attorney-client privileged communications. See Rules 1.6(c), 3.3 and 4.1 of Tennessee’s Supreme Court Rule 8.

Tennessee Rule of Civil Procedure 26.02(3) protects work product prepared in anticipation of litigation or for trial, which rule provides, in relevant part:

. . . a party may obtain discovery of documents and tangible things otherwise discoverable under . . . this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

 To invoke the work product doctrine, a party must establish according to Tennessee Rule of Civil Procedure 26.02(3): 1) that the materials sought are documents or tangible things, (2) that the documents were “prepared in anticipation of litigation or for trial,” and (3) that the documents were prepared “by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer, or agent).” In Tennessee, the work product doctrine “does not protect documents prepared in the regular course of business.” Friedmann v. Corr. Corp. of Am., No. M2012-00212-COA-R3CV, 2013 WL 784584, at *8 (Tenn. Ct. App. Feb. 28, 2013). Finally, the party asserting the doctrine must also demonstrate that it has not waived its protection with regard to the documents being sought.

Yes, Tennessee has codified the accountant-client privilege under the Tennessee Accountancy Act of 1998, as follows:

(a) Licensees [Certified Public Accountants] shall not divulge, nor shall they in any manner be required to divulge, any information that is communicated to them or obtained by them by the reason of the confidential nature of their employment. The information shall be deemed confidential; provided, however, that nothing in this subsection (a) shall be construed as prohibiting the disclosure of information required to be disclosed by the standards of the public accounting profession in reporting on the examination of financial statements or as prohibiting disclosures in investigations or proceedings under this chapter, in ethical investigations conducted by private professional organizations or in the course of peer reviews, or to other persons active in the organization performing services for that client on a need to know basis or to persons in the entity who need this information for the sole purpose of assuring quality control. Disclosure of confidential information pursuant to this subsection (a) shall not constitute a waiver of the confidential nature of the information for any other purpose.

(b) Information derived as a result of such professional employment is deemed to be confidential, except that nothing in this chapter shall be construed as modifying, changing or affecting the criminal or bankruptcy laws of this state or of the United States.

Tenn. Code Ann. § 62–1–116. Under Tennessee law, the accountant-client privilege belongs to the client. See Fed. Ins. Co. v. Arthur Anderson & Co., 816 S.W.2d 328 (Tenn. 1991).

Yes, Tennessee Supreme Court Rule 31 § 7 provides that “[e]vidence of conduct, information disclosed, or any statement made in the course of a Rule 31 Mediation is confidential to the extent agreed by the parties or provided by other law or rule of this State. Such evidence shall be inadmissible to the same extent as conduct or statements are inadmissible under Tennessee Rule of Evidence 408. No Rule 31 Mediator may be compelled to testify by deposition or otherwise regarding such conduct, information, or statements. A written mediated agreement signed by the parties is admissible to enforce the understanding of the parties.”

Yes, Tennessee Rule of Evidence 408 provides that “[e]vidence of (1) furnishing or offering to furnish or (2) accepting or offering to accept a valuable consideration in compromising or attempting to compromise a claim, whether in the present litigation or related litigation, which claim was disputed or was reasonably expected to be disputed as to either validity or amount, is not admissible to prove liability for or invalidity of a civil claim or its amount or a criminal charge or its punishment. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence actually obtained during discovery merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution; however, a party may not be impeached by a prior inconsistent statement made in compromise negotiations.”