Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Wisconsin |
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(United States)
Firm
Michael Best & Friedrich LLP
Contributors
Paul Benson |
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| Is the ACP recognized in your jurisdiction? | Yes. The privilege is codified at Wis. Stat. § 905.03 Lawyer-Client Privilege and SCR 20:1.6 Confidentiality. The privilege has also been further developed and explained through case law. |
| 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... | N/A |
| 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? | At the state level, there is no difference between how the ACP is applied.[1] However, federal privilege cases are ”governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” [2] Therefore, any cases brought under federal criminal law would be interpreted that way. Notes: [1]See generally Wis. Stat. § 905.03. [2]United States v. Zolin, 491 U.S. 554, 562 (1989) (citing FED. R. EVID. 501). |
| 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.) | No. The notes applicable to Wis. Stat. § 905.03 reference the Committee Note of the federal Advisory Committee on Evidence Rules, which is not binding authority, but is persuasive. A section of this Note mentions that inadvertent disclosure of protected communications to a federal officer or agency does not constitute a waiver of the ACP under certain circumstances. It, therefore, follows that a government entity cannot require disclosure of communications appropriately governed by the ACP. Furthermore, the Wisconsin Supreme Court has found that the government should exhaust all other routes to obtain information before using methods that could potentially violate the ACP. In the case cited for this principle, the court found that it was inappropriate for a defendant’s former attorney to speak during a new trial about the client’s competence during their relationship, as her perceptions were based upon the attorney-client relationship. Wisconsin recognizes what it refers to as the entity rule. This rule can easily be summed up: a lawyer retained by an entity client represents the entity itself, rather than any individual constituent associated with the entity. Therefore, the privilege belongs to the corporation. Wisconsin enforces this rather robustly, having even found that work performed in forming a business organization was undertaken on behalf of the organization, rather than the individuals who requested the legal assistance to form the organization. Notes: [3] State v. Meeks, 2003 WI 104 ¶ 52, 263 Wis. 2d 794, 819–20, 666 N.W.2d 859, 872 (2003). |
| 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? | While Wisconsin does not specifically require a higher burden on in-house counsel to establish that the privilege applies, it is important to bear in mind that the type of communication that occurs between members of the business and its in-house counsel is carefully scrutinized. The privilege, as a general rule, only covers those communications that are legal in nature, and does not protect general business discussions or business advice, even if the discussion involves a lawyer. Many of the Wisconsin cases that address this topic tend to find that the communication is not protected by the ACP. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes. [6] The lawyer may assert it on behalf of the client but does not hold the privilege himself. [7] Notes: [8] See Dyer v. Blackhawk Leather LLC, 2008 WI App 128 ¶ 7-8, 313 Wis. 2d 803, 814-15 758 N.W.2d 167, 173-74 (Ct. App. 2008). |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | If an in-house attorney holds a Wisconsin law license, they must join the State Bar of Wisconsin. [8] Additionally, an attorney who works for a Wisconsin entity, but does not have a Wisconsin law license must register with the Wisconsin Board of Bar Examiners (BBE).[9] Once an attorney files this registration, the time spent by this attorney providing legal services will count towards the out-of-state practice requirements for an attorney to become licensed in Wisconsin.[10] [8] Membership, State Bar of Wisconsin, https://www.wisbar.org/aboutus/membership/Pages/membership.aspx (last visited Jan. 23, 2020). [9] Dean R. Dietrich, Ethics: New Rules Affect In-House Counsel, WisconsinLawyer, October 8, 2008, at 2. [10] Id.; SCR 40.05(1)(b). |
| Is the common interest doctrine recognized in your jurisdiction? | Yes |
| How is the doctrine articulated in your jurisdiction? | The privilege is codified at Wis. Stat. § 905.03(2) as part of the attorney-client privilege. Note that the common interest privilege does not apply if the attorney represents a common interest, but was not retained or consulted in common by multiple clients in furtherance of that interest. [11] The leading Wisconsin case on this matter is Zinda v. Louisiana Pacific Corp., 149 Wis. 2d 913, 921, 440 N.W.2d 548 (1989). Notes: [11] State v. Hydrite Chem. Co., 220 Wis. 2d 51, 76-77, 582 N.W.2d 411, 421-22 (Ct. App. 1998). |
| Must a common interest agreement be in writing? | While there is no requirement in Wisconsin for a common interest agreement to be in writing, it is always encouraged to reduce such an agreement to writing. [12] Notes: [12] Edna Selan Epstein, Common Interest, in 1 The Attorney-Client Privilege and the Work-Product Doctrine (Am. Bar Assoc. ed., 6th ed. 2017). |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Yes. This is a relatively new law, enacted in April 2018, which requires litigants to disclose their outside legal funding arrangements. It was 2017 Act 235, which created Wis. Stat. § 804.01(2)(bg). While there are no direct professional rules related to this matter, it is important to bear in mind the ethics of fees [13] and fee-sharing with non-lawyers. [14] Notes: [13] See generally SCR 20:1.5. [14] See generally SCR 20:5.4(a). |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | There is no case law in Wisconsin on this question yet. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Wis. Stat. § 905.03(4). Lane v. Sharp Packaging Systems, 2002 WI 28, 251 Wis. 2d 68, 640 N.W.2d 788 (2002) discusses the crime-fraud exception in detail. |
| 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, the work product doctrine is recognized by Wis. Stat. § 804.01(2)(c), which limits the discovery of work product. |
| What are the elements of the protection in your jurisdiction? | The privilege only applies to material prepared in anticipation of litigation. [15] It does not apply to transactional work, though that work may still be covered by the attorney-client privilege in certain circumstances. [16] Furthermore, the work product doctrine does have exceptions.[17] If an opposing party can sufficiently show that they require discovery of ordinary work product, they will be granted access to the documents in certain circumstances. [18] Work product is discoverable in Wisconsin “when: (1) it is not privileged; (2) it is relevant; (3) the party seeking discovery has a substantial need for the materials, and (4) the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” [19] Notes: [15] Daniel D. Blinka, Wisconsin PracticeSeries: 7 WISCONSIN Evidence, 397 (4th ed. 2017). [16] Id. [17] Wis. Stat. § 804.01(2)(c). [18] Id. [19] State v. Hydrite Chem. Co., 220 Wis. 2d 51, ¶ 70, 582 N.W.2d 411 (Ct. App. 1998). |
| Does your jurisdiction recognize an accountant-client privilege? | Wis. Stat. § 442.13 provides that documents prepared by accountants for their clients are confidential communications. However, In re Mittco, Inc., 44 B.R. 35 (Bankr. E.D. Wis. 1984) indicated that there is no accountant-client privilege that can be used in a judicial proceeding.[20] Notes: [20] In re Mittco, Inc., 44 B.R. 35, 37 (Bankr. E.D. Wis. 1984). |
| Does your jurisdiction recognize a mediation privilege? | Yes. This privilege is codified at Wis. Stat. § 904.085. This privilege protects communications “made or presented” by the parties to a mediation. There are a few exceptions to this privilege mentioned within the statute, such as an exception for evidence discovered outside of the mediation, or any agreements made pursuant to the mediation. |
| Does your jurisdiction recognize a settlement negotiation privilege? | No. Connor v. Michigan Wisconsin Pipe Line Co., 15 Wis.2d 614, 113 N.W.2d 121 (1962) clearly states: “[T]he overwhelming weight of precedent is against invoking such an all-inclusive rule of privilege even though there may be strong reasons of logic and public policy in favor thereof.” On the federal side, Thermal Design, Inc. v. Guardian Bldg. Products, Inc. 270 F.R.D. 437 (E.D. Wis. 2010) said: “Put simply, there is no controlling case in the Seventh Circuit, but the Court agrees with the cases which find that there is no federal privilege preventing the discovery of settlement agreements and related documents.” |
Lex Mundi Global Attorney-Client Privilege Guide
USA, Wisconsin
(United States) Firm Michael Best & Friedrich LLPContributors Paul Benson
Updated 25 Mar 2020Yes. The privilege is codified at Wis. Stat. § 905.03 Lawyer-Client Privilege and SCR 20:1.6 Confidentiality. The privilege has also been further developed and explained through case law.
N/A
At the state level, there is no difference between how the ACP is applied.[1] However, federal privilege cases are ”governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” [2] Therefore, any cases brought under federal criminal law would be interpreted that way.
Notes:
[1]See generally Wis. Stat. § 905.03.
[2]United States v. Zolin, 491 U.S. 554, 562 (1989) (citing FED. R. EVID. 501).
No. The notes applicable to Wis. Stat. § 905.03 reference the Committee Note of the federal Advisory Committee on Evidence Rules, which is not binding authority, but is persuasive. A section of this Note mentions that inadvertent disclosure of protected communications to a federal officer or agency does not constitute a waiver of the ACP under certain circumstances. It, therefore, follows that a government entity cannot require disclosure of communications appropriately governed by the ACP. Furthermore, the Wisconsin Supreme Court has found that the government should exhaust all other routes to obtain information before using methods that could potentially violate the ACP. In the case cited for this principle, the court found that it was inappropriate for a defendant’s former attorney to speak during a new trial about the client’s competence during their relationship, as her perceptions were based upon the attorney-client relationship.
Wisconsin recognizes what it refers to as the entity rule. This rule can easily be summed up: a lawyer retained by an entity client represents the entity itself, rather than any individual constituent associated with the entity. Therefore, the privilege belongs to the corporation. Wisconsin enforces this rather robustly, having even found that work performed in forming a business organization was undertaken on behalf of the organization, rather than the individuals who requested the legal assistance to form the organization.
Notes:
[3] State v. Meeks, 2003 WI 104 ¶ 52, 263 Wis. 2d 794, 819–20, 666 N.W.2d 859, 872 (2003).
[4] Id. at ¶ 53–54.
[5] Lane v. Sharp Packaging Sys., 251 Wis. 2d 68 ¶ 33, 640 N.W.2d 788 (2002).
While Wisconsin does not specifically require a higher burden on in-house counsel to establish that the privilege applies, it is important to bear in mind that the type of communication that occurs between members of the business and its in-house counsel is carefully scrutinized. The privilege, as a general rule, only covers those communications that are legal in nature, and does not protect general business discussions or business advice, even if the discussion involves a lawyer. Many of the Wisconsin cases that address this topic tend to find that the communication is not protected by the ACP.
Yes. [6] The lawyer may assert it on behalf of the client but does not hold the privilege himself. [7]
Notes:
[8] See Dyer v. Blackhawk Leather LLC, 2008 WI App 128 ¶ 7-8, 313 Wis. 2d 803, 814-15 758 N.W.2d 167, 173-74 (Ct. App. 2008).
[7] Harold Sampson Childrens Trust v. Linda Gale Sampson 1979 Trust, 2004 WI 57 ¶ 31, 271 Wis. 2d 610, 624, 679 N.W.2d 794, 800 (2004).
If an in-house attorney holds a Wisconsin law license, they must join the State Bar of Wisconsin. [8] Additionally, an attorney who works for a Wisconsin entity, but does not have a Wisconsin law license must register with the Wisconsin Board of Bar Examiners (BBE).[9] Once an attorney files this registration, the time spent by this attorney providing legal services will count towards the out-of-state practice requirements for an attorney to become licensed in Wisconsin.[10]
[8] Membership, State Bar of Wisconsin,
https://www.wisbar.org/aboutus/membership/Pages/membership.aspx (last visited Jan. 23, 2020).
[9] Dean R. Dietrich, Ethics: New Rules Affect In-House Counsel, WisconsinLawyer, October 8, 2008, at 2.
[10] Id.; SCR 40.05(1)(b).
Yes
The privilege is codified at Wis. Stat. § 905.03(2) as part of the attorney-client privilege.
Note that the common interest privilege does not apply if the attorney represents a common interest, but was not retained or consulted in common by multiple clients in furtherance of that interest. [11] The leading Wisconsin case on this matter is Zinda v. Louisiana Pacific Corp., 149 Wis. 2d 913, 921, 440 N.W.2d 548 (1989).
Notes:
[11] State v. Hydrite Chem. Co., 220 Wis. 2d 51, 76-77, 582 N.W.2d 411, 421-22 (Ct. App. 1998).
While there is no requirement in Wisconsin for a common interest agreement to be in writing, it is always encouraged to reduce such an agreement to writing. [12]
Notes:
[12] Edna Selan Epstein, Common Interest, in 1 The Attorney-Client Privilege and the Work-Product Doctrine (Am. Bar Assoc. ed., 6th ed. 2017).
Yes. This is a relatively new law, enacted in April 2018, which requires litigants to disclose their outside legal funding arrangements. It was 2017 Act 235, which created Wis. Stat. § 804.01(2)(bg). While there are no direct professional rules related to this matter, it is important to bear in mind the ethics of fees [13] and fee-sharing with non-lawyers. [14]
Notes:
[13] See generally SCR 20:1.5.
[14] See generally SCR 20:5.4(a).
There is no case law in Wisconsin on this question yet.
Yes
Wis. Stat. § 905.03(4). Lane v. Sharp Packaging Systems, 2002 WI 28, 251 Wis. 2d 68, 640 N.W.2d 788 (2002) discusses the crime-fraud exception in detail.
Yes, the work product doctrine is recognized by Wis. Stat. § 804.01(2)(c), which limits the discovery of work product.
The privilege only applies to material prepared in anticipation of litigation. [15] It does not apply to transactional work, though that work may still be covered by the attorney-client privilege in certain circumstances. [16] Furthermore, the work product doctrine does have exceptions.[17] If an opposing party can sufficiently show that they require discovery of ordinary work product, they will be granted access to the documents in certain circumstances. [18]
Work product is discoverable in Wisconsin “when: (1) it is not privileged; (2) it is relevant; (3) the party seeking discovery has a substantial need for the materials, and (4) the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” [19]
Notes:
[15] Daniel D. Blinka, Wisconsin PracticeSeries: 7 WISCONSIN Evidence, 397 (4th ed. 2017).
[16] Id.
[17] Wis. Stat. § 804.01(2)(c).
[18] Id.
[19] State v. Hydrite Chem. Co., 220 Wis. 2d 51, ¶ 70, 582 N.W.2d 411 (Ct. App. 1998).
Wis. Stat. § 442.13 provides that documents prepared by accountants for their clients are confidential communications. However, In re Mittco, Inc., 44 B.R. 35 (Bankr. E.D. Wis. 1984) indicated that there is no accountant-client privilege that can be used in a judicial proceeding.[20]
Notes:
[20] In re Mittco, Inc., 44 B.R. 35, 37 (Bankr. E.D. Wis. 1984).
Yes. This privilege is codified at Wis. Stat. § 904.085. This privilege protects communications “made or presented” by the parties to a mediation. There are a few exceptions to this privilege mentioned within the statute, such as an exception for evidence discovered outside of the mediation, or any agreements made pursuant to the mediation.
No. Connor v. Michigan Wisconsin Pipe Line Co., 15 Wis.2d 614, 113 N.W.2d 121 (1962) clearly states: “[T]he overwhelming weight of precedent is against invoking such an all-inclusive rule of privilege even though there may be strong reasons of logic and public policy in favor thereof.”
On the federal side, Thermal Design, Inc. v. Guardian Bldg. Products, Inc. 270 F.R.D. 437 (E.D. Wis. 2010) said: “Put simply, there is no controlling case in the Seventh Circuit, but the Court agrees with the cases which find that there is no federal privilege preventing the discovery of settlement agreements and related documents.”