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[null,"Prepared By:","Contributors:"]
[null,"Crowley Fleck PLLP"]
[]
[]
[]
["Lex Mundi Global Attorney-Client Privilege Guide"]
[]
["Report Generated: 11/19/2025"]
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["View your report results on next tab"]

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["Question","USA, Montana"]
["Attorney-Client/Solicitor-Client Privilege (ACP)"]
["Is the ACP recognized in your jurisdiction?"," The ACP is recognized in Montana. It falls under MONT. CODE ANN. § 26-1-803. This statute states that: \n\n \n\t An attorney cannot, without the consent of the client, be examined as to any communication made by the client to the attorney or the advice given to the client in the course of professional employment. \n\t A client cannot, except voluntarily, be examined as to any communication made by the client to the client's attorney or the advice given to the client by the attorney in the course of the attorney's professional employment. \n \n\n MONT. CODE ANN. § 26-1-803 (West) \n"]
["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 in a civil proceeding?\n\nNote: This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions’ privilege doctrines.","The ACP is recognized in Montana.\n"]
["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?","The ACP does not differ in its application between civil and criminal proceedings. Government authorities may not require the disclosure of attorney-client communications and legal work product.\n"]
["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.)","Montana extends the privilege to corporations to the extent that the communications of corporate employees to corporate counsel relate to the subject of their employment. Such communications are protected by the privilege. Clark v. Norris, 226 Mont. 43, 51, 734 P.2d 182, 187 (1987) (“When a person employed by a corporation is instructed to make a report, the privilege of that report is to be determined by the employer’s purpose in requiring the report. If the employer directs the taking of a report for confidential transmittal to its attorney, the communication may be privileged.”) (citing \nSierra Vista Hospital v. Superior Court for San Luis Obispo County, 248 Cal. App. 2d 359, 56 Cal. Rptr. 387, 392 (2d Dist. 1967)). See also \nKuiper v. District Court of Eighth Judicial District Court, 193 Mont. 452, 462, 632 P.2d 694, 700 (1981) (“Exhibit J is a document prepared by an employee of the liability insurance company and forwarded to other personnel within the same insurance company. If any privilege exists, it exists for the benefit of that liability insurance company and would have to be claimed by that company.”).\nIn \nInter-Fluve v. Montana Eighteenth Judicial District Court, 2005 MT 103, ¶35, 327 Mont. 14, 112 P.3d 258, the Montana Supreme Court determined that:\n“[A]s corporate directors are jointly responsible for the proper management of a corporation, it is consistent with this joint obligation that they be treated as joint clients with the corporation when legal advice is rendered to the corporation through one of its officers or directors.”\n"]
["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?"," No. In-State ex rel. Union Oil Company of California v. District Court of Eighth Judicial District in and for Cascade County , 160 Mont. 229, 503 P.2d 1008 (1972) the Montana Supreme Court determined that the attorney-client privilege applies to legal opinions rendered in private by in-house counsel. The court expressed its agreement with a test outlined in United States v. United Shoe Machinery Corporation , 89 F. Supp. 357 (D. Mass., 1950). The test was established to determine when the attorney-client privilege applies between a corporation and their in-house counsel’s documents: \n\n \n\t the exhibit itself was prepared by or for either (1) independent counsel or (2) defendant's general counsel or one of his immediate subordinates; and \n\t as appears upon the face of the exhibit, the principal purpose for which the exhibit was prepared was to solicit or give an opinion on law or legal services or assistance in a legal proceeding; and \n\t the part of the exhibit sought to be protected consists of either (1) information which was secured from an officer or employee of defendant and which was not disclosed in a public document or before a third person, or (2) an opinion based upon such information and not intended for disclosure to third persons. \n \n\n Union Oil , 160 Mont. at 236-237, 503 P.2d at 1012. \n\n In Kuiper v. District Court of Eighth Judicial District , 193 Mont. 452, 632 P.2d 694 (1981), the Montana Supreme Court upheld the decision that the attorney-client privilege applied to legal advice which is given to a corporate employer by in-house counsel. The court noted an exception for communications not relating to legal advice; such communications are not privileged. \n"]
["Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?","In-house counsel may assert the privilege. As stated in \nUnion Oil Co and Kuiper, supra, the attorney-client privilege extends to in-house counsel, unless the communications which are the subject of the privilege are not pertaining to any legal advice.\n"]
["Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?","In-house counsel are allowed to be active members of the Montana bar. Montana follows Rule 5.5 of Rule of Professional Conduct. Unauthorized Practice of Law; Multijurisdictional Practice of Law, which discusses a lawyer’s ability to be admitted to practice law as well as practice law. Individuals who are in-house counsel fall under Rule 5.5.\nThe Montana State Bar Rules for Admission state in section \nV. Admission on Motion: (d)(1)Definitions: “active practice of law” means active and continuous engagement or employment in the performance of legal services and includes the following activities if performed or treated as performed while the applicant was admitted in active statues; (f) service as in-house counsel provided to the applicant’s employer or its organization affiliates, which service was performed after admission to practice in the jurisdiction in which the service was performed.\n"]
["Is the common interest doctrine recognized in your jurisdiction?","Yes, Montana recognizes the common interest doctrine.\n"]
["How is the doctrine articulated in your jurisdiction?","The Montana Supreme Court follows the reasoning of \nU.S. v. BDO Seidman, LLP, 492 F.3d 806, 816 (7th Cir. 2007), stating that “attorney-client communications may be protected if disclosed to another party ‘where the parties undertake a joint effort with respect to a common legal interest.’” \nAmerican Zurich Insurance Co. v. Montana Thirteenth Judicial District Court, 2012 MT 61, ¶11, 364 Mont. 299, 280 P.3d 240. The Montana Supreme Court has emphasized that disclosures to a third party may be privileged in instances where the communication to the third party is “necessary for the client to obtain informed legal advice.” \nBDO Seidman, ¶11 (citing \nWestinghouse Electric Corp. v. Republic of Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991)).\n"]
["Must a common interest agreement be in writing?","There does not appear to be a Montana Supreme Court decision which expressly states that a common interest agreement must be in writing. However, it is strongly recommended that such agreements be reduced to writing.\n"]
["Is litigation funding permitted in your jurisdiction?  Are there any professional rules in this respect?"," Yes, litigation funding is permitted in Montana. However, lawyers must still follow the Montana Rules of Professional Conduct. In this regard, Rule 1.8(e) states that: a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: \n\n \n\t A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and \n\t A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. \n \n\n   \n"]
["Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection","It does not appear that the Montana courts have yet addressed whether communications with litigation funders may be protected by attorney-client privilege or the work product doctrine.\n"]
["Is the crime-fraud exception recognized in your jurisdiction?","Yes, the crime-fraud exception is recognized in Montana.\n"]
["What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?","The Montana Supreme Court recognized the crime-fraud exception to the attorney-client privilege in U\nnited States Fidelity and Guaranty Company v. Montana Second Judicial District Court, 240 Mont. 5, 783 P.2d 911 (1989), stating that “the civil fraud exception to the attorney-client privilege has traditionally been invoked where an attorney or client is involved in unlawful or criminal conduct, or future fraudulent activity.” \nId. at 14, 783 P.2d at 916.\n"]
["Work Product Doctrine/Litigation Privilege (doctrine that protects materials prepared in anticipation of litigation or for trial)"]
["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)?)","Under Rule 26 3(a), MONT. R. CIV. P. “a party may not discover documents or tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.”\nMONT. CODE ANN. § 46-15-324 discusses which materials are not subject to disclosure in criminal cases.\n"]
["What are the elements of the protection in your jurisdiction?"," Rule 26 (3), MONT. R. CIV. P. provides that: \n\n “a party may not discover documents or tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant surety, indemnitor, insurer, or agent). But subject to Rule 26(b)(4), those materials may be discovered if: \n\n \n\t They are otherwise discoverable under Rule 26(b)(1); and \n\t the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” \n \n\n MONT. CODE ANN. §46-15-324 states further: “ \n\n \n\t Except as provided in this section, disclosure is not required for the superseded notes or work product of the prosecuting or defense attorney. \n\t If exculpatory information is contained in the superseded notes or work product of the prosecution, that information must be disclosed. \n\t Disclosure of the existence of an informant or the identity of an informant who will not be called to testify is not required if: \n \n\n A. Disclosure would result in substantial risk to the informant or to the informant’s operational effectiveness; and \nB. The failure to disclose will not infringe the constitutional rights of the accused.” \n"]
["Other Privileges"]
["Does your jurisdiction recognize an accountant-client privilege?"," Yes. MONT. CODE ANN. § 37-5-402 states that: \n\n \n\t Except by permission of the client, person, or firm engaging a certified public accountant or an employee of the accountant or by permission of the heirs, successors, or personal representatives of the client, person, or firm and except for the expression of opinions on financial statements, a certified public accountant or employee may not be required to disclose or divulge or voluntarily disclose or divulge information that the certified public accountant or an employee may have relative to and in connection with any professional services as a certified public accountant. The information derived from or as a result of professional services is considered confidential and privileged. \n\t The provisions of this section do not apply to the testimony or documents of a certified public accountant furnished pursuant to a subpoena in a court of competent jurisdiction, pursuant to a board proceeding, or in the process of any board-approved practice review program. \n \n"]
["Does your jurisdiction recognize a mediation privilege?","Yes. MONT. CODE ANN. § 26-1-813(2) states, in pertinent part, “Except upon written agreement of the parties and the mediator, mediation proceedings must be: (a) confidential; (b) held without a verbatim record; and (c) held in private.” Further, a mediator's files and records, with the exception of signed, written agreements, are closed to all persons unless the parties and the mediator mutually agree otherwise.\nGenerally, all mediation-related communications, verbal or written, between the parties or from the parties to the mediator and any information and evidence presented to the mediator during the proceedings are confidential. The mediator's report, if any, and the information or recommendations contained in it, with the exception of a signed, written agreement, are not admissible as evidence in any action subsequently brought in any court of law or before any administrative agency and are not subject to discovery or subpoena in any court or administrative proceeding unless all parties waive the rights to confidentiality and privilege. MONT. CODE ANN. § 26-1-813(3). The parties to the mediation and a mediator are not subject to subpoena by any court or administrative agency and may not be examined in any action as to any communication made during the course of the mediation proceeding without the consent of the parties to the mediation and the mediator. MONT. CODE ANN. § 26-1-813(4). However, the confidentiality and privilege provisions of this statute do not apply to information revealed in a mediation if disclosure is: (a) required by any statute; (b) agreed to by the parties and the mediator in writing, whether prior to, during, or subsequent to the mediation; or (c) necessary to establish a claim or defense on behalf of the mediator in a controversy between a party to the mediation and the mediator. MONT. CODE ANN. § 26-1-813(5).\n"]
["Does your jurisdiction recognize a settlement negotiation privilege?","Yes. MONT. R. EVID. 408 states that evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion of any evidence otherwise discoverable 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.\n"]