Attorney-Client Privilege in the United States.

Paul R. Rice Lawyers Cooperative Publishing, Aqueduct Building, Rochester, NY 14694. 1,177 pp., $130.

Reviewed by Mark A. Freeman

Attorneys, beware. If you are handling a products liability, bad faith, malicious prosecution, patent infringement, antitrust, or stockholder derivative action and you do not have Attorney-Client Privilege: State Law and its predecessor Attorney-Client Privilege in the United States (1993) in your library, put your malpractice carrier on notice. These treatises provide the definitive analysis of attorney-client privilege and are an essential part of the library of any attorney litigating complex matters.

Must a manufacturer disclose to opposing counsel internal memoranda suggesting that safer manufacturing alternatives existed? Must an inventor/patentee disclose a patent attorney's opinions relating to the validity of the patent? The answers to these questions and thousands more are found in Paul Rice's treatises on attorney-client privilege.

Rice, a law professor at American University in Washington, D.C., also served as a special master in the AT&T antitrust litigation, in which the masters ruled on more than 4,000 claims of privilege.

Unlike treatises that discuss the law in a vacuum, Attorney-Client Privilege in the United States addresses the privilege through its application in motions practice, discovery, and trial. The book provides excellent practical guidance.

Sections within each chapter flow easily from the general rule of law to very specific fact patterns and issues. For example, in chapter 4, the author gives the definition of a client for the purpose of the privilege. He then examines specific circumstances when individuals or entities will qualify as clients within the definition. His analysis of fact-specific circumstances is exhaustive and includes attorney communications with the client's agents, in-house counsel, attorneys in the same firm, directors, shareholders, former and present corporate employees, independent contractors, government agencies, and representatives of insurance companies.

In addition, each section of each chapter is cross-referenced to other relevant sections. For example, a chapter entitled "Client" discusses when directors, stockholders, and shareholders of a corporation personify the client, rendering their communication with corporate counsel privileged. This section is cross-referenced to a chapter entitled "Exceptions to the Privilege"--which discusses shareholder derivative actions--and to a chapter entitled "Waiver"--which discusses who at the corporate level has the authority to waive the privilege. This cross-reference is particularly important because the elements of the privilege must be analyzed on many different fronts.

A chapter entitled "Procedure" outlines how and when to make objections to discovery requests directed toward privileged material, the burden of persuasion and proof necessary to sustain the privilege, the use of in-camera proceedings by the court, and protective orders directed toward privileged material. This chapter also contains sample pleadings and documents.

The book is amply supported by citations to published opinions and commentary. In it and the state law complement, Rice claims to cover every reported U.S. judicial opinion on the topic of attorney-client privilege--more than 8,000 cases.

The value of Attorney-Client Privilege: State Law cannot be overstated. It is presented in the same format as the main treatise, but it is contained on 12 computer disks formatted for WordPerfect 5.0. Having the treatise on computer disks makes it easy to search for authority on a given topic.

The state law treatise analyzes the laws of each state and the District of Columbia, identifying whether a particular state's law is consistent with federal law. Nearly every case cited is accompanied by extensive parenthetical descriptions of the holding.

Every litigator will encounter the attorney-client privilege issue at some time. When that time ultimately comes, Professor Rice's treatises will prove to be invaluable resources.